Nelson Bido v. State of Rhode Island , 2012 R.I. LEXIS 152 ( 2012 )

Supreme Court
No. 2011-77-Appeal.
(PM 09-4622)
Nelson Bido :
v. :
State of Rhode Island. :
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island,
250 Benefit Street, Providence, Rhode Island 02903, at Telephone
222-3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2011-77-Appeal.
(PM 09-4622)
Nelson Bido :
v. :
State of Rhode Island. :
Present: Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
OPINION
Justice Goldberg, for the Court. The applicant, Nelson Bido (Bido or applicant), is
before the Supreme Court on appeal from a Superior Court judgment that denied his application
for postconviction relief. He argues that the trial justice erred in dismissing his application that
alleged, principally, the ineffective assistance of his trial counsel based on counsel‟s failure to
move for dismissal of the indictment on speedy-trial grounds. After a careful review of the
record, we affirm the judgment of the Superior Court.
Facts and Travel
In May 2006, Bido was convicted of aiding and abetting murder and conspiracy to
commit robbery. The underlying facts are set forth in detail in our opinion affirming that
conviction. State v. Bido, 941 A.2d 822, 825-27 (R.I. 2008). We therefore recount only those
facts pertinent to the primary issue raised in Bido‟s application.
On April 15, 1991, Jorge Confessor (Confessor) was shot in the back and robbed of a
brown paper bag containing approximately $29,000 in cash and check deposits in a Citizens
Bank parking lot in Providence. Confessor was pronounced dead at the scene. An eyewitness to
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the crime memorized the license plate number of the getaway vehicle; Providence police traced
the license plate to Bido.
Shortly after the shooting, Bido returned to his apartment, and his then-girlfriend,
Rosalinda Colon (Colon), hastily helped him pack up his belongings and leave. Bido disclosed
to Colon that he was “in trouble” because he “did something wrong.” Bido told her that he was
“going to New York,” and, within five minutes, Bido fled to New York City. Before doing so,
however, he asked Colon to dispose of a bag, together with its contents, that he had left in the
apartment. When she looked inside the bag, Colon discovered a firearm; this weapon later was
determined to be the weapon used to murder Confessor. When the police arrived at Bido‟s
home, Colon informed them that Bido had fled, and she directed them to the basement, where
they seized the gun.
Providence police contacted New York City authorities, and, on July 2, 1991, two New
York City police detectives arrested Bido after he entered a vehicle bearing the same license
plate as the car used in Confessor‟s murder. Bido volunteered to the detectives that he knew that
his arrest was “about Rhode Island.” At the police station, Bido agreed to speak with police, and
he gave a statement explaining that he had let an acquaintance borrow his vehicle knowing that it
would be used in a robbery. The New York City detectives relayed this information to the
Providence police.
Bido remained in a New York jail for several months, awaiting a governor‟s warrant for
extradition to Rhode Island. During this time, Bido married Colon, “apparently so that [Colon]
could not be used as a witness against him.” Bido, 941 A.2d at 827. Meanwhile, Providence
police traveled to New York along with attorney David Morowitz (Morowitz), the prosecutor
who was assigned to the case in its early stages; however, the grand jury proceedings were not
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completed within the statutory period, and Bido was released from police custody sometime in
October 1991. On July 2, 1992, an indictment was returned by the grand jury.
It was not until 2005 that Bido was arrested and brought to Rhode Island. His trial,
which commenced in May 2006, culminated in guilty verdicts for the crimes of conspiracy to
commit robbery and aiding and abetting murder. In his direct appeal, Bido contended, inter alia,
that an ambiguous statement he made to the trial justice, in the context of a request for new
counsel immediately before the start of trial,1 should have been understood to be a motion to
dismiss for lack of a speedy trial. Bido, 941 A.2d at 827-29. We declined to consider this
speedy-trial contention, concluding that, because Bido “did not put forth his argument in a
rational and recognizable posture to the trial justice[,]” it had not properly been preserved. Id. at
829. This Court affirmed Bido‟s conviction in all respects. Id. at 837.
On August 12, 2009, Bido filed a pro se application for postconviction relief, setting forth
five allegations of error.2 After counsel was appointed to represent him, an amended application
1
Bido relied on the following statement he made to the trial justice:
“I don‟t feel really comfortable with [defense counsel] representing me. I [sic]
been in prison three times for the same case already. I‟ve never rejected coming
here at any point. I don‟t know why they release [sic] me. I lived 15 years in the
same street, the same house with the same lady; filing security tax, the same
name. Why didn‟t they arrest me before I went to renew my green card at
immigration before? And right there they arrested me and told me that the case
was still open. And then they arrested me and then they released me back there.
And then I kept coming back to court during those three months, and three
months later they came back and arrested me again. And I [sic] been here for
eight and a half months or so. The first time, I was five and a half months there
waiting for them to come. And the second time they arrested me, I was there in
prison for four days. So, I don‟t know what is happening right now. I have never
been that type of person that they accuse me of.” State v. Bido, 941 A.2d 822,
828 (R.I. 2008).
2
Specifically, Bido alleged: (1) that the extradition process used by Rhode Island authorities to
obtain custody over him from New York authorities was faulty; (2) that the fourteen-year delay
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and accompanying memorandum of law were filed that exclusively focused on the allegation that
counsel‟s failure to seek dismissal of the indictment on speedy trial grounds amounted to
ineffective assistance of counsel.
An evidentiary hearing was held on April 16 and 19, 2010. Three witnesses testified:
Bido, his defense counsel, and Morowitz. Bido sought to explain that, for much of the fourteen-
year delay between his July 2, 1991 arrest in New York City and his 2005 arrest and extradition
to Rhode Island, it was his belief that the case against him in Rhode Island had been closed. He
also raised an alibi, declaring that he was in New York, and not Rhode Island, at the time of
Confessor‟s murder and that when he was released in July 1991, he was told that Rhode Island
had insufficient evidence to proceed against him. He testified that he took this to mean that the
case was closed. Bido stated that he did not receive notice of the indictment and that, if he had
been made aware of the charges, he would have returned to Rhode Island “right away.” Bido
testified that it was only in 2005, when he went to the Department of Homeland Security on an
unrelated matter, that he learned—to his surprise—that the Rhode Island charges remained
outstanding.
between Bido‟s 1991 arrest in New York City and his 2005 extradition to Rhode Island violated
his speedy-trial rights; (3) that a search of his Rhode Island apartment shortly after Confessor‟s
murder, to which Colon had consented, was unconstitutional; (4) that the state coerced Colon to
testify against him by threatening her with criminal charges and the prospect of taking away her
children if she refused to testify; and (5) that Bido‟s defense counsel was ineffective in numerous
respects. Despite raising these five claims in his pro se application, in this appeal Bido solely
focuses on the denial of his allegation of ineffective assistance of counsel based on the failure to
move for dismissal of the indictment on speedy-trial grounds. We therefore deem all of Bido‟s
other claims waived and will not discuss them in this opinion. See Catucci v. Pacheco, 866 A.2d
509, 515-16 (R.I. 2005) (explaining that a party waives an issue when it fails to brief or
otherwise argue the issue before this Court).
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However, on cross-examination, he admitted that, when he was arrested in 1996,3 he was
advised of an outstanding warrant in Rhode Island for the Confessor murder; he insisted that a
New York judge informed him then that the Rhode Island case was closed. Additionally, the
state established that, in 2005, Bido fought extradition from New York and that he declared in an
affidavit that in 1996, when he was arrested in New York, he knew that the Rhode Island charges
were pending.
Bido also testified that he lived openly in New York City from 1991 to 2005, and he
explained that, if “[Rhode Island authorities] had wanted me to come to Rhode Island[,] [t]hey
could have come to get me at my house. I‟ve never been hiding.” He described the several
locations where he lived during this time4 and stated that he had held a New York-issued driver‟s
license and had held various jobs during this period, including a stint as a licensed taxicab driver.
Bido referred to a statement from the Social Security Administration that showed the income he
reported in the years between 1993 and 2006.
Bido further testified that between 1991 and 2005 he was no stranger to New York‟s
legal system. He explained that he was arrested “[s]everal times” during this period.5 Bido
testified that each time he was arrested he provided his name and address to authorities.
3
The record reveals that Bido was arrested in 1996 for running a red light and on suspicion of
driving while intoxicated.
4
All told, Bido had six addresses over the fourteen years between 1991 and 2005: his mother-in-
law‟s house, at which he lived immediately after his release in 1991; an apartment in his own
name; three different apartments within one apartment complex, where he lived with Colon; and
another address at which he occasionally lived with his girlfriend. With the exception of one
apartment, none of these locations were held in Bido‟s name.
5
The state stipulated that Bido was in the custody of New York authorities on: May 8, 1996;
again on February 12, 1999 until May 5, 2000; once more between February 17, 2005 and
March 11, 2005; and, finally, from May 24, 2005 to August 5, 2005.
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Additionally, Bido testified that he appeared several times in the New York City Family Court
for child-support proceedings.
Finally, Bido testified that, after he was extradited to Rhode Island in 2005, he gave his
defense counsel all the paperwork that had been prepared by his New York attorney, including a
letter from his attorney that indicated that, based on the delay, a motion for a speedy trial should
be filed on Bido‟s behalf. Bido‟s trial counsel testified that, based on his twenty-three years as a
public defender, it was “unusual” for a defendant to stand trial on an indictment issued fourteen
years earlier. Nevertheless, defense counsel admitted that he had not moved, either orally or in
writing, to dismiss the indictment on speedy-trial grounds.
Morowitz testified for the state and indicated that, after Bido‟s July 1991 arrest, he drove
to New York with two police officers to interview Bido about Confessor‟s murder. Although
Bido initially indicated a willingness to cooperate with the state in its investigation of the
murder, he quickly proved to be uncooperative, at which point Morowitz told him that he would
be charged with murder. Bido was indicted in July 1992; Morowitz was unable to explain how
the case was handled thereafter, other than to say that another member of the attorney general‟s
staff would have handled Bido‟s extradition.
In a bench decision, the trial justice, who also presided at Bido‟s trial, denied the
application. In reaching his conclusion, the trial justice first addressed Bido‟s speedy-trial claim,
using the four-factor speedy-trial framework established by the United States Supreme Court in
Barker v. Wingo, 407 U.S. 514, 530 (1972), and adopted by this Court in Tate v. Howard, 110
R.I. 641, 647-48, 296 A.2d 19, 23-24 (1972). That framework consists of an evaluation of the
following 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) prejudice to the defendant. Barker, 407 U.S. at
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530; Tate, 110 R.I. at 648, 296 A.2d at 23-24. The trial justice found that the delay in this case
was presumptively prejudicial, thereby triggering an analysis of the remaining Barker factors.
The trial justice next remarked that the issue “probably critical to the case” was the
reason for the delay. The trial justice found that from Bido‟s getaway on the day of the murder,
which the trial justice termed “classic flight,” to his eleventh-hour request for appointment of
new counsel—on the eve of trial and after a plea bargain was rejected—over fifteen years later,
Bido doggedly had pursued a strategy of avoiding a trial on the indictment. The trial justice
further found that, despite being aware of the Rhode Island charges after his arrests in 1991 and
again in 1996, Bido refused voluntarily to return to Rhode Island. The trial justice placed
particular emphasis on the fact that, contrary to his testimony that he first learned that the
indictment was pending in 2005, Bido contested extradition in 2005 and declared in his affidavit
that, after his 1996 arrest, he knew that the charges were pending and nevertheless refused to
return to Rhode Island.
The trial justice also found it significant that, after his July 1991 arrest, Bido married
Colon; he characterized this marriage as an effort to prevent Colon from testifying against him.
Additionally, although the trial justice recognized that Bido remained in New York City until
2005, when he was extradited to Rhode Island, he found that Bido worked many jobs and lived
in several locations, most of which were in the names of his wife or girlfriend. The trial justice
also noted that Bido fought extradition in 2005 and found this to be further evidence of a
deliberate effort to avoid returning to Rhode Island. Finally, the trial justice observed that, at the
“last minute,” Bido moved for a continuance of his trial to obtain new counsel, shortly after he
learned that Colon was on her way to Rhode Island to testify against him.
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Most significantly, the trial justice found that Bido‟s testimony at the
postconviction-relief hearing was not credible. The trial justice explained that, notwithstanding
the testimony of several trial witnesses that Bido was in the state at the time of Confessor‟s
murder, Bido insisted that he was not in Rhode Island at that time. The trial justice declared,
“[T]here‟s no question in my mind that [Bido] was not truthful with me” when he testified at the
postconviction-relief hearing.
The trial justice held that the primary responsibility for the complained-of delay in this
case was attributable to Bido. Although the trial justice recognized that “[t]here‟s no question
that [the state] could have done a better job” processing this case, he nevertheless was
“convinced that the primary paramount cause of this delay was the conduct of Mr. Bido.”
The trial justice briefly discussed the prejudice factor of the speedy-trial framework. He
acknowledged that Bido had identified two specific instances of prejudice allegedly flowing
from the delay: (1) the 1991 notes of a police officer who testified at Bido‟s trial had been lost;
and (2) Bido was unable to locate a potential witness or suspect in Confessor‟s murder, a man he
referred to as “Giovanni.” However, the trial justice concluded that “the reason for the delay is
clearly and primarily attributed to [Bido] and as a result of that any prejudice that he might suffer
is of his own doing.”
The trial justice concluded that Bido‟s speedy-trial claim was without merit.
Accordingly, the trial justice found that Bido‟s allegation of ineffective assistance of counsel
similarly was doomed, stating that “because [Bido] was solely responsible for the delay, one
cannot attribute to his attorney any failure to be effective for not raising” the speedy-trial issue.
Bido timely appealed.
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Standard of Review
The statutory remedy of postconviction relief set forth in G.L. 1956 chapter 9.1 of title 10
is “available to any person who has been convicted of a crime and who thereafter alleges either
that the conviction violated the applicant‟s constitutional rights or that the existence of newly
discovered material facts requires vacation of the conviction in the interest of justice.” Sosa v.
State, 949 A.2d 1014, 1016 (R.I. 2008) (quoting Pierce v. Wall, 941 A.2d 189, 192 (R.I. 2008)).
When reviewing the grant or denial of postconviction relief, the hearing justice‟s factual findings
and credibility determinations will be upheld “absent clear error or a determination that the
hearing justice misconceived or overlooked material evidence.” Lynch v. State, 13 A.3d 603,
605 (R.I. 2011) (quoting Rodrigues v. State, 985 A.2d 311, 313 (R.I. 2009)); see Rice v. State,
38 A.3d 9, 17 n.11 (R.I. 2012) (“This Court will not disturb * * * credibility determinations by a
postconviction-relief hearing justice unless the [applicant] „demonstrate[s] by a preponderance of
the evidence that the [hearing] justice was clearly wrong.‟” quoting Fontaine v. State, 602 A.2d
521, 526 (R.I. 1992)). At the same time, we review “questions of fact concerning infringement
of constitutional rights, and mixed questions of law and fact with constitutional implications, de
novo.” Sosa, 949 A.2d at 1016; see also Lynch, 13 A.3d at 605. When conducting our de novo
review, however, we nonetheless accord “great deference” to the hearing justice‟s “[f]indings of
historical fact, and inferences drawn from those facts.” Hazard v. State, 968 A.2d 886, 891 (R.I.
2009) (quoting Gonder v. State, 935 A.2d 82, 85 (R.I. 2007)).
Analysis
Bido‟s sole contention on appeal is that the trial justice erred in denying his
postconviction-relief claim of ineffective assistance of counsel. In assessing claims of
ineffective assistance of counsel, we employ the familiar two-pronged standard enunciated in
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Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Neufville v. State, 13 A.3d 607, 610
(R.I. 2011); Lynch, 13 A.3d at 605. First, the applicant must establish that counsel‟s
performance was constitutionally deficient; “[t]his requires [a] showing that counsel made errors
so serious that counsel was not functioning as the „counsel‟ guaranteed * * * by the Sixth
Amendment.” Neufville, 13 A.3d at 610 (quoting Powers v. State, 734 A.2d 508, 522 (R.I.
1999)). In determining whether this first hurdle has been surmounted, we scrutinize the
performance of counsel in a “highly deferential” manner, Lynch, 13 A.3d at 606, affording
counsel “a strong presumption that counsel‟s conduct falls within the permissible range of
assistance.” Neufville, 13 A.3d at 610. “Second, the applicant must show that he was prejudiced
by this deficient performance.” Lynch, 13 A.3d at 605. To satisfy this prong, the applicant must
“prove, by a „probability sufficient to undermine confidence in the outcome[,]‟ that „but for
counsel‟s unprofessional errors, the result of the proceeding would have been different.‟” Id. at
605-06 (quoting Strickland, 466 U.S. at 694).
The primary focus of Bido‟s allegation of ineffective assistance of counsel in Superior
Court—and his sole focus on appeal—was defense counsel‟s failure to seek dismissal of the
indictment based on the denial of his right to a speedy trial. Therefore, before we can decide
whether Bido has met either prong of the Strickland standard, we first evaluate the merits of
Bido‟s speedy-trial claim. It is to this matter that we now turn.
I
Speedy Trial
A criminal defendant‟s right to a speedy trial emanates from the Sixth Amendment to the
United States Constitution and article 1, section 10 of the Rhode Island Constitution. State v.
Oliveira, 961 A.2d 299, 317 (R.I. 2008). As the United States Supreme Court has observed:
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“The speedy trial guarantee is designed to minimize the possibility
of lengthy incarceration prior to trial, to reduce the lesser, but
nevertheless substantial, impairment of liberty imposed on an
accused while released on bail, and to shorten the disruption of life
caused by arrest and the presence of unresolved criminal charges.”
United States v. Loud Hawk, 474 U.S. 302, 311 (1986) (quoting
United States v. MacDonald, 456 U.S. 1, 8 (1982)).
To assess the merits of a speedy-trial claim, this Court uses Barker‟s four-factor
framework. State v. Crocker, 767 A.2d 88, 91 (R.I. 2001). We examine “(1) the length of the
delay, (2) the reason for delay, (3) the defendant‟s assertion of his [or her] rights, and (4) the
prejudice to the accused.” Id. (quoting State v. Austin, 731 A.2d 678, 683 (R.I. 1999)). In
conducting our analysis, we carefully weigh “each factor, with no single one being wholly
dispositive.” Oliveira, 961 A.2d at 317 (quoting State v. DeAngelis, 658 A.2d 7, 11 (R.I. 1995)).
Under this framework, we are convinced that Bido‟s speedy-trial claim is without merit.
The first factor in the framework “is a threshold consideration that triggers review of the
remaining factors only if the delay is long enough to be considered „presumptively prejudicial.‟”
Crocker, 767 A.2d at 91-92 (quoting Austin, 731 A.2d at 683). “We have held that the line that
demarks the „presumptively prejudicial‟ boundary may be drawn at twelve months.” State v.
Powers, 643 A.2d 827, 831 (R.I. 1994). Bido contends, and the state concedes, that for
speedy-trial purposes the delay in this case—over fourteen years, from Bido‟s arrest in July 1991
to the commencement of Bido‟s trial in May 2006—is presumptively prejudicial, thereby
triggering the remainder of the Barker analysis.
The second Barker factor requires us to determine the reason for the delay. Oliveira, 961
A.2d at 317. In most cases, each side bears at least some responsibility for pretrial delay.
Austin, 731 A.2d at 684; Powers, 643 A.2d at 831. This case is no exception. Resolution of the
second factor requires us to “balance the culpability of the parties in causing the delay.” Austin,
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731 A.2d at 684 (quoting Powers, 643 A.2d at 831); see also Vermont v. Brillon, 556 U.S. 81, 90
(2009) (“[I]n applying Barker, we have asked „whether the government or the criminal defendant
is more to blame for th[e] delay.‟” quoting Doggett v. United States, 505 U.S. 647, 651 (1992)).
In determining each party‟s relative responsibility for the delay, we remain mindful that
“[d]ifferent reasons for delay are assigned different weights.” Austin, 731 A.2d at 683; see also
Powers, 643 A.2d at 831. With respect to the state‟s responsibility, at one end of the culpability
spectrum lies “intentional attempts to delay trial to gain a tactical advantage over a defendant[,
which] weigh heavily against the prosecution.” Oliveira, 961 A.2d at 317. At the other extreme,
we recognize that “pretrial delay is often both inevitable and wholly justifiable,” Doggett, 505
U.S. at 656, and that “a valid reason, such as a missing witness, should serve to justify
appropriate delay.” Powers, 643 A.2d at 831 (quoting Barker, 407 U.S. at 531). Between these
poles, “official negligence in bringing an accused to trial occupies the middle ground.” Doggett,
505 U.S. at 656-57. “Although negligence is obviously to be weighed more lightly than a
deliberate intent to harm the accused‟s defense, it still falls on the wrong side of the divide
between acceptable and unacceptable reasons for delaying a criminal prosecution once it has
begun.” Id. at 657.
Finally, with respect to a defendant‟s responsibility for the delay, a criminal defendant is
not entitled to have things both ways; the accused “cannot take advantage of a delay for which he
or she is responsible, whether caused by action or inaction on his or her part, and that factor will
weigh against him or her in the balance.” Oliveira, 961 A.2d at 317; see also Brillon, 556 U.S. at
90 (“[D]elay caused by the defense weighs against the defendant[.]”). The Supreme Court has
explained that, “[j]ust as a State‟s „deliberate attempt to delay the trial in order to hamper the
defense should be weighted heavily against the [State],‟ * * * so too should a defendant‟s
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deliberate attempt to disrupt proceedings be weighted heavily against the defendant.” Brillon,
556 U.S. at 93-94 (quoting Barker, 407 U.S. at 531).
In this case, the trial justice, after finding that Bido was not a credible witness, concluded
that Bido‟s conduct was the primary cause of the complained-of delay. This finding largely
rested on the fact that, in his 2005 affidavit, Bido acknowledged that he was made aware of the
indictment in 1996 but nonetheless refused voluntarily to return to this jurisdiction to face the
charges. Additionally, the trial justice deemed Bido‟s decision to fight extradition in 2005 to be
consistent with his overall efforts to avoid standing trial on the indictment. The trial justice‟s
conclusion is fully consistent with this Court‟s speedy-trial jurisprudence. See, e.g., State v.
Werner, 831 A.2d 183, 195 (R.I. 2003) (affirming the denial of the defendant‟s speedy trial claim
because, among other reasons, the trial justice correctly referred to the fact that the defendant
“for a time had refused to cooperate in the attempt by Rhode Island authorities to have him
transferred to Rhode Island pursuant to the [Interstate Agreement on Detainers Act]”); Crocker,
767 A.2d at 91-94 (affirming the trial justice‟s determination that the defendant‟s conduct was
the primary cause of the delay in a case in which the defendant remained absent from the
jurisdiction for sixteen years, despite knowing of the existence of an outstanding arrest warrant,
and did not voluntarily return to Rhode Island); see also United States v. Manning, 56 F.3d 1188,
1195 (9th Cir. 1995) (“If the delay can be attributed to Manning himself, he will be deemed to
have waived his speedy trial rights entirely. * * * Manning cannot avoid a speedy trial by forcing
the government to run the gauntlet of obtaining formal extradition and then complain about the
delay that he has caused by refusing to return voluntarily to the United States.”); United States v.
Thirion, 813 F.2d 146, 154 (8th Cir. 1987) (“Thirion attempts to attribute the ninety-two-day
delay between his arrest in Monaco and his arraignment in the United States to the government.
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Thirion contends that he attempted to waive extradition and return to the United States. His
contention is supported only by his own testimony and is inconsistent with his flight to Europe,
decision to remain abroad when he learned of the indictment against him and his strong reliance
on the terms of the extradition. Absent evidence of any formal waiver of extradition, we are
unwilling to attribute to the government any delay caused by formal extradition proceedings
initiated in compliance with the treaty.”).
In Crocker, 767 A.2d at 92-94, the defendant was brought to trial sixteen years after he
was indicted. Nonetheless, the trial justice found, and we agreed, that the “primary reason” for
the delay was “that [the defendant] deliberately failed to appear for his pretrial conference date
after receiving notice to do so. Thereafter, he remained outside this jurisdiction on the lam from
an outstanding arrest warrant that he knew the court had issued after he failed to appear for his
scheduled 1981 trial.” Id. at 92.
In this case, Bido, like the defendant in Crocker, purposefully remained outside the
state‟s jurisdiction despite actual knowledge of the charges pending against him. Beginning with
his “classic flight” on the day of Confessor‟s brutal murder, Bido took several steps to avoid
facing trial: he refused Morowitz‟s offer to cooperate against the other perpetrators and was
informed that he would be prosecuted for murder; he married Colon in an apparent attempt to
prevent her from testifying against him; he lived at an assortment of New York addresses, almost
all of which were in someone else‟s name; he refused to return to Rhode Island after his 1996
arrest when he learned that the indictment was pending; he fought extradition to Rhode Island in
2005; and, on the eve of trial, he sought a continuance to secure new counsel after learning that
Colon was on her way from New York to testify against him. These facts provide ample support
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for the trial justice‟s conclusion that the delay in this case largely can be attributed to Bido‟s own
avoidance efforts.
To be sure, the state is not blameless; fourteen years elapsed between Bido‟s indictment
and his trial, and the state has offered scant explanation for this delay, beyond simply pointing to
Bido‟s conduct. Indeed, the trial justice recognized that “[t]here‟s no question that [the state]
could have done a better job,” and the state, for its part, concedes that the pace of Bido‟s
prosecution hardly was exemplary. Nevertheless, the trial justice found that the lion‟s share of
the responsibility for the delay rested at Bido‟s feet. We agree with this conclusion.
In Crocker, 767 A.2d at 91-92, the state, as a result of apparent oversight, failed to
execute an outstanding arrest warrant for the defendant for a period of sixteen years, despite
knowing of an out-of-state address for the defendant. We nonetheless affirmed the trial justice‟s
finding that the defendant, by virtue of his willful and deliberate evasive actions, was more
culpable than the state for causing the delay. Id. at 93-94. We explained that:
“The mere fact that the state negligently allowed [the defendant] to
get away with his evasive conduct for so many years does not
excuse him from intentionally refusing to appear for his pretrial
conference in the first place and then, for the next sixteen plus
years, failing to return to Rhode Island to face the criminal charges
that „he knew, * * * or should have known‟ were still pending
against him.” Id. at 94.
Our reasoning in Crocker fully applies to this case: although the state was negligent in
failing to pursue Bido once he fled Rhode Island, that negligence does not excuse Bido‟s pattern
of evasive conduct. The trial justice gave full consideration to the relative responsibility of the
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state and Bido for this long period of delay. We agree with the trial justice‟s apportionment of
culpability.6 The second Barker factor therefore weighs against Bido.
Turning to the third factor—the defendant‟s assertion of the right to a speedy trial—
“[w]hen assessing a defendant‟s assertion of his [or her] right to a speedy trial, this Court looks
for actions sufficiently aggressive to constitute the equivalent of „banging on the courthouse
doors.‟” Crocker, 767 A.2d at 94 (quoting Austin, 731 A.2d at 684). Bido‟s conduct in this case
in no way approaches pounding, or even tapping, on the courthouse doors; in fact, Bido
consistently sought to avoid prosecution.
Bido contends that he cannot be faulted for failing to assert his right to a speedy trial
because he had “no reason after his release in 1991 to expect that the [s]tate intended to
prosecute him.” This argument contradicts the findings of the trial justice that in 1991 Morowitz
told him that he would be prosecuted for murder and that in 1996 he again was made aware that
the Rhode Island charges were pending. The facts, as found by the trial justice, establish that
Bido had actual knowledge of the Rhode Island charges for at least some, if not all, of the long
period of delay. This fact is significant when assessing the third Barker factor.
In Crocker, 767 A.2d at 94, we held that:
“[A] legally prudent person who faces criminal charges and who
has deliberately avoided a trial date and ignored an outstanding
arrest warrant is well advised to assert his or her right to a speedy
trial—if he or she wishes to preserve that right[—by] loudly
knocking on the courthouse door and demanding a speedy trial.
This is especially true if a defendant is on notice that a warrant for
his or her arrest is outstanding.”
6
At one point in his bench decision, the trial justice remarked that Bido was “solely responsible”
for the delay. However, the trial justice noted that “[t]here‟s no question that [the state] could
have done a better job” in processing the case, and he repeatedly explained that Bido‟s conduct
was the “primary” or “paramount” reason for the delay. We therefore agree with so much of the
trial justice‟s decision that allocates some responsibility for the delay to the state, while finding
that most of that responsibility rests with Bido.
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This Court rejected “Crocker‟s „no news is good news‟ stance, pursuant to which, he says, he
just assumed after a while that the charges no longer were pending.” Id. at 95. Similarly, in
Doggett, 505 U.S. at 650, a case involving a delay of more than eight years between indictment
and arrest, the Supreme Court remarked that, had the defendant known of his indictment during
that time, “Barker‟s third factor, concerning invocation of the right to a speedy trial, would be
weighed heavily against him.” Id. at 653.
Doggett and Crocker therefore compel the conclusion that the third factor must weigh
heavily against Bido, because the facts found by the trial justice establish that Bido knew of the
pending Rhode Island charges and nevertheless failed to demand a speedy trial or otherwise
assert that right in any way.
Finally, with respect to the fourth factor in the speedy-trial framework—prejudice to the
defendant—the Supreme Court has “identified three types of prejudice that the right to a speedy
trial was designed to prevent: oppressive pretrial incarceration, anxiety and concern of the
defendant, and impairment of the ability to present a defense.” Oliveira, 961 A.2d at 319. Of the
three, “[t]he latter concern is the most important „because the inability of a defendant adequately
to prepare his case skews the fairness of the entire system.‟” Id. (quoting DeAngelis, 658 A.2d
at 12). Furthermore, the Supreme Court has recognized that “affirmative proof of particularized
prejudice is not essential to every speedy trial claim” because “excessive delay presumptively
compromises the reliability of a trial in ways that neither party can prove or, for that matter,
identify.” Doggett, 505 U.S. at 655.
Here, Bido makes no assertion that the first two types of prejudice apply in his case.
Apart from the approximately four months he spent confined in New York City after his July
1991 arrest, Bido was not confined on this charge again until 2005. Therefore, any oppressive
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pretrial confinement is entirely absent from this case. Additionally, Bido hardly can assert that
he suffered much anxiety and concern as a result of these pending charges; he testified that he
lived and worked in New York purportedly unaware, until 2005, of the ghost of Confessor‟s
murder. Thus, the only type of prejudice Bido plausibly can claim is the impairment of his
ability to present a defense.
In the course of this case,7 Bido has identified two instances of specific prejudice: (1) the
1991 notes of a testifying police officer had been lost; and (2) a possible witness or suspect in the
Confessor murder—a man referred to only as “Giovanni”—could not be located. Additionally,
Bido argues that the sheer length of delay in this case justifies a presumption of prejudice. We
are unconvinced.
With respect to the lost police notes, Bido has given us nothing to suggest how the loss of
the notes caused him any prejudice. The police officer testified at trial and was subjected to
extensive voir dire on Bido‟s motion to suppress his statements, and the officer testified that he
vividly remembered the circumstances of Bido‟s arrest and interview in New York. Bido, 941
A.2d at 834-37. During the suppression hearing, Bido “put forth no evidence that contradicted
[the officer‟s] account of the circumstances that preceded [Bido‟s] statement.” Id. at 836. Bido
has similarly failed to provide us with any indication of how the missing notes caused him any
7
On appeal, Bido equates the “prejudice to the accused” factor of the speedy-trial framework to
the prejudice prong of the Strickland standard. These inquiries, while both employing the term
“prejudice,” are very different: the fourth Barker factor examines how the delay has prejudiced
the accused in terms of the three specific types of prejudice and any presumptive prejudice that
may arise from excessive delay, Doggett v. United States, 505 U.S. 647, 654-56 (1992), while
the prejudice prong of the Strickland inquiry examines whether the allegedly constitutionally
deficient performance of counsel caused the result of the proceeding to be different from what it
would have been if counsel‟s performance was within the bounds of what is constitutionally
permissible, Lynch v. State, 13 A.3d 603, 605-06 (R.I. 2011). However, notwithstanding Bido‟s
error, we briefly address the types of prejudice alleged below by appointed counsel and
mentioned by Bido on appeal under his discussion of the first Barker factor.
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prejudice. With respect to the infamous “Giovanni,”8 we are troubled by the wholly undeveloped
and unsubstantiated nature of Bido‟s argument that, because of the delay, he cannot now locate a
purportedly crucial witness—or perhaps even a potential suspect—whom, after all, he can
identify only on a first-name basis. Cf. Crocker, 767 A.2d at 95 (“Crocker never presented
evidence that would lead us to believe that any of his proposed character witnesses—all of whom
allegedly were unavailable or unable to testify at his 1997 trial because of the delay—were of
critical importance to his case. In fact, Crocker never took advantage of the trial justice‟s offer
to give him „a reasonable amount of time‟ to produce „either the original witnesses‟ or „more
contemporary or perhaps more probative witnesses,‟ thereby further indicating to the trial court
and to us that, in all likelihood, no material character witnesses existed.”).
Moreover, although the trial justice acknowledged Bido‟s bare contentions of prejudice,
he concluded that, because Bido‟s conduct was the primary reason for the delay, any prejudice
that might have been suffered must be laid at his feet. We deem this conclusion to be correct.
See Crocker, 767 A.2d at 96 (explaining, in the course of rejecting the defendant‟s speedy-trial
claim, that “Crocker, unlike the defendant in Doggett, intentionally avoided returning to this
jurisdiction to face the charges that he knew or should have known were still pending against
him—and thus was himself largely responsible for the delay in his eventual trial”). Therefore,
we weigh the fourth factor against Bido.
After carefully assaying each Barker factor, we are convinced that any speedy-trial claim
that Bido might have raised at his trial would have been without merit.
8
While the transcript below—as well as Bido on appeal—refers to this man as “Giovanni,”
Bido‟s memorandum supporting his amended application for postconviction relief refers to this
man as “Jovanny” and “Shorty.” We also note that, when he was arrested in 1991, Bido told
New York authorities that he had loaned his car to a friend named “Yovanny” knowing that
Yovanny would be using the vehicle in a robbery. Bido, 941 A.2d at 827. Thus, though not
clear, we will consider that “Giovanni” and “Yovanny” are one and the same.
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II
Ineffective Assistance of Counsel
Having evaluated the merits of Bido‟s underlying speedy-trial claim, we now turn to
Bido‟s allegation of ineffective assistance of counsel. We are convinced that the trial justice
properly denied this claim.
Because our analysis leads us to conclude that Bido‟s speedy-trial claim would not have
been successful, defense counsel‟s failure to move for dismissal of the indictment on speedy-trial
grounds was not constitutionally deficient. Moreover, even if defense counsel‟s performance fell
below an objective standard of reasonableness, Bido‟s claim cannot surmount the prejudice
prong of Strickland; because Bido‟s speedy-trial contention, if raised, ultimately would have
proven unsuccessful, he cannot show that the result of the proceeding against him would have
been different. Accordingly, the trial justice‟s denial of Bido‟s allegation of ineffective
assistance of counsel was correct.
Conclusion
For the reasons articulated above, we affirm the judgment below. The papers may be
remanded to the Superior Court.
Justice Indeglia did not participate.
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RHODE ISLAND SUPREME COURT CLERK’S OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: Nelson Bido v. State of Rhode Island.
CASE NO: No. 2011-77-Appeal.
(PM 09-4622)
COURT: Supreme Court
DATE OPINION FILED: December 10, 2012
JUSTICES: Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
WRITTEN BY: Associate Justice Maureen McKenna Goldberg
SOURCE OF APPEAL: Providence County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Gilbert V. Indeglia
ATTORNEYS ON APPEAL:
For Applicant: Susan B. Iannitelli, Esq.
For State of Rhode Island: Aaron L. Weisman
Department of Attorney General