The defendant, Sandra Varagianis, was convicted in Superior Court (Dalianis, J.) of transporting a controlled substance in violation of RSA 318-B:2,1. On appeal, she makes two arguments: (1) that the two-year delay between the date of the alleged offense and the return of an indictment against her prejudiced her and denied her due process of law; and (2) that the trial court erroneously admitted hearsay evidence at her trial. For the reasons that follow, we affirm.
In early 1981, Ross Bentley, while acting as an informant in a drug trafficking investigation in the Seacoast area, arranged to purchase one pound of marijuana from Bruce Viel, owner of the Rochester Car Care. Bentley and Viel agreed to meet at Rochester Car Care at 8:00 a.m. on February 10. At trial, Bentley testified that shortly after 8:00 a.m., the defendant drove up in a brown Chevrolet pickup truck. From inside the Car Care building, Bentley observed Viel meet the defendant outside and saw the defendant hand Viel a brown paper bag. Viel immediately returned to the Car Care building and gave Bentley the bag in exchange for $450.
During the transaction, two State troopers who were involved in the investigation were parked nearby. Trooper Presby testified that he and Trooper Nims positioned themselves in two locations near the Rochester Car Care. Presby, who was in a parking lot- approximately 500 feet from Car Care, also testified that at about 8:30 a.m. he observed a brown pickup truck, which he recognized as belong
At her trial, the defendant denied delivering the marijuana, but was unable to remember with specificity her whereabouts on February 10, 1981, other than to say that she was “at the gym” which she and her husband owned. On appeal, the defendant argues that the two-year delay between the date of the alleged offense and her indictment in February 1983 “prejudiced [her] and denied her due process of law.” While it is true that the State and Federal Constitutions guarantee an accused the right to a speedy trial, N.H. Const. pt. I, art. 14; U.S. Const. amends. VI, XIV, this right is “relative, and must be considered with regard to the practical administration of justice.” Riendeau v. Milford Municipal Court,
The due process clause has also been recognized as having “a limited role to play in protecting against oppressive delay.” United States v. Lovasco,
The defendant argues that she was prejudiced because the delay hampered her preparation of a defense. She claims that her memory of the day in question had dimmed and that therefore she was unable to recall her whereabouts at the time of the alleged offense. She also asserts that the informant, Ross Bentley, had a “very poor memory” of the alleged incident. The defendant admits, however, that dimming of memories, alone, is insufficient to show actual
Additionally, assuming arguendo that the defendant had met her burden with respect to prejudice, we would have to balance that prejudice against the reasonableness of the delay. The State articulated several reasonable explanations for the two-year delay, including maintaining the secrecy of the informant’s identity until completion of an on-going drug trafficking investigation and the unwillingness of the informant to testify due to his fear for his own personal safety. Clearly, the delay in this case was not unreasonable and would not be the basis for a finding that the defendant had been denied due process. Therefore, we find that the trial court correctly denied the defendant’s motion to dismiss.
The defendant next claims that the trial court erroneously admitted hearsay into evidence over her objection. The exchange upon which the defendant relies is as follows:
“Q. [By the State of the wit- And I believe your last stateness Bentley:] ment after that was you waited for Ms. Varagianis to come?
A. Yes.
Q. Did you expect her to arrive?
A. Yes.
Q. How was it you expected her to arrive?
A. Bruce had told me.
[Defense:] Objection, Your Honor, hearsay.
The Court: Ms. Conway.
[State:] I’ll rephrase the question, Your Honor.
*230 The Court: Fine.
Q. [By the State:] In the course of setting up this deal, did you learn that Ms. Varagianis would be making this delivery?
A. Yes, I did.
[Defense:] Objection, Your Honor.
The Court: Basis?
[Defense:] Hearsay.
The Court: Response?
[State:] I don’t think it’s hearsay, Your Honor. He hasn’t stated any out-of-court statement; he’s stated he learned it in the course—
The Court: Overruled; your exception.”
The defendant contends that Bentley’s response “Yes, I did” is equivalent to “Yes, I learned that Sandra Varagianis would be making this delivery,” and that the latter is hearsay. We do not agree.
Hearsay is defined as “an out-of-court statement offered [in court] to prove the truth of the matter asserted in the statement.” Caledonia, Inc. v. Trainor,
The defendant further avers that, on virtually identical facts, we reversed a drug sale conviction in State v. Ruelke,
Affirmed.
