Com. v. Gilbert

• Decision Date: 16 July 1974
• Citation: 366 Mass. 18,314 N.E.2d 111
• Parties: COMMONWEALTH v. George B. GILBERT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 111

314 N.E.2d 111

366 Mass. 18

COMMONWEALTH v. George B. GILBERT.

Supreme Judicial Court of Massachusetts, Essex.

Argued May 7, 1974.

Decided July 16, 1974.

Francis J. DiMento, Boston, for defendant.

John J. Jennings, Asst. Dist. Atty., for the Commonwealth.

TAURO, Chief Justice.

At his jury trial in the Superior Court in Essex County, the defendant George B. Gilbert was found guilty of murder in the second degree of his wife Mary. In this appeal, pursuant to G.L. c. 278, §§ 33A--33G, he makes six arguments for reversal. Four of these relate to evidentiary rulings by the trial judge. The other two separately raise the fundamental questions of (1) the trial court's subject matter jurisdiction and (2) the defendant's right to a speedy trial. We affirm.

The chronology of events in this case involves a wide spectrum of dates and places covering a period of several years. Therefore, we believe it is best to discuss the specific facts as these relate to the respective issues when they are considered during the course of the opinion. Suffice to say at this point that the defendant was charged with the murder of his wife on September 14, 1966; that he dismembered her body and disposed of the remains in the Atlantic Ocean where some of them were dredged up by a fisherman some months later. Before the discovery of the remains it was generally believed that the defendant and his wife had perished at sea during a violent storm on the night of September 14. The defendant reappeared two years and four months later near Las Vegas, Nevada, claiming to be the victim of amnesia. He was arrested but resisted rendition for approximately a year and seven months before he finally returned to Massachusetts voluntarily, pleaded innocent to the charge of murder, and was released on bail pending trial. He was tried and convicted of murder in the second degree on May 30, 1973.

We deal first with the preliminary issue of whether the defendant was denied a speedy trial in violation of his rights under the Fourteenth Amendment to the United States Constitution. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). The facts pertinent to this issue may be summarized as follows. The murder with which the defendant was charged allegedly occurred on or about September 14, 1966. From that date until January 30, 1969, the defendant's whereabouts were unknown. On January 30, 1969, the Commonwealth learned that he was in North Las Vegas, Nevada, and on the following day the clerk pro tem of the District Court of Eastern Essex (Gloucester) issued a complaint charging him with murder. Hours later, he was arrested by the North Las Vegas police. Rendition proceedings were begun on February 4, 1969, and on September 16, 1969, the Essex County grand jury returned a formal indictment. On September 3, 1970, the defendant stopped resisting the rendition process, voluntarily returned to Massachusetts, and surrendered himself at the Superior Court in Salem.

He was arraigned on the same day. His trial, however, did not commence until over thirty-one months later, on April 30, 1973. This period of delay is clearly sufficient in length to trigger serious consideration of the question whether the Commonwealth denied the defendant a speedy trial. Commonwealth v. Horne, --- Mass. ---, 291 N.E.2d 629 (1973). ^a Length of delay, however, is but one of several factors relevant to the inquiry. '(T)he reason(s) for the delay, the defendant's assertion of his right, and prejudice' must also be weighed. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

Looking to the record in this case, and to the findings by the trial judge, who denied the defendant's motion to dismiss on the ground that he had been denied a speedy trial, it is clear that the defendant and not the Commonwealth was primarily responsible for the major portion of the lengthy delay. On September 8, 1970, five days after arraignment, the defendant requested and was granted a continuance for the purpose of allowing him time to retain counsel on the question of bail. On October 5, the defendant was released on bail. On the same day, the defendant's motion to extend to October 26 the time for filing preliminary motions was allowed.

In November, 1970, the defendant's counsel, in response to an inquiry from the district attorney as to the setting of a trial date, suggested sometime after January 1, 1971. The case was then put on the trial list for January, 1971. In spite of the defendant's arguments to the contrary, the trial judge's findings warranted by the evidence reveal that the defendant's counsel had other court commitments pending from January to May of 1971, and 'consequently the case was put over to the September list of 1971.'

Between September, 1971, and March, 1972, the defendant's counsel and the prosecutor participated in meetings in preparation for a seminar on criminal practice held by the New England Law Institute in March, 1972. The parties have stipulated that at 'two or three of those meetings and at a chance meeting at the New Court House in Boston . . . (the prosecutor) raised the subject of setting a trial date but he and . . . (defense counsel) did not pursue the matter further on those occasions.' It should be noted that the case had been put on the January, 1972, trial list. While these events do not demonstrate an excess of diligent effort on the part of the Commonwealth to bring the case to trial, they also reveal a degree of acquiescence in the delay by defense counsel. This may have been due, in part, to the fact that the defendant was out on bail and, therefore, had no particular anxiety to go to trial.

The trial judge's findings describe the chronology of subsequent events: 'In March of 1972 counsel discussed a trial date, and the District Attorney requested of the Chief Justice (of the Superior Court) a trial date of August 7, 1972. Counsel for the defendant thereupon wrote the Chief Justice a letter requesting a trial date in September 1972, or thereafter, for reasons of personal convenience. From October 5, 1972, to February of 1973, defendant's counsel was unavailable for trial due to illness. Because of defense counsel's schedule of trial of another homicide in this same county, it was agreed to reschedule this trial for April 30, 1973.' It was at the opening of the trial on the thirtieth that the defendant first moved to dismiss for failure to provide a speedy trial.

The burden was on the defendant to show that the government unreasonably caused a prejudicial delay. While it is true that '(a) defendant has no duty to bring himself to trial,' Barker v. Wingo, supra, at 527, 92 S.Ct. at 2190, he cannot rightly complain if his own or his counsel's actions are substantially responsible for the prosecution's failure to press for the earliest possible trial date. Ibid. The early portions of the delay in this case are attributable to a continuance and an extension requested by the defendant. Other portions were caused by defense counsel's illness and commitments to other cases. The only period in this case where the prosecution may have been delinquent in its duty to press for trial occurred between September, 1971, and March, 1972, a span of six months. However, during this time the defendant appears to have made little or no effort to expedite matters, a failure which does not amount to a waiver, Barker v. Wingo, supra, at 528, 92 S.Ct. 2182, but one that does bear on the question whether the defendant met his 'responsibility to assert his right.' Id. at 531, 92 S.Ct. 2182. The existence of such a 'responsibility' indicates that an acquiescing defendant must also be held partially accountable for pretrial delays. While such acquiescence does not relieve the prosecutor of his duties, it is material in weighing the prosecution's inaction in the balancing test required under Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. 2182.

That the defendant did not assert his right to a speedy trial at any point during the delay is also extremely relevant to the question of prejudice. Indeed, the 'failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.' Barker v. Wingo, supra, at 532, 92 S.Ct. at 2193. If the defendant were truly concerned that the passage of time would undermine his ability to defend himself, common sense dictates that he would have pressed for a speedy trial. By the time he voluntarily returned to Massachusetts, four years had elapsed since his alleged commission of the crime. If the defendant thought that the failure of witnesses' memories would be harmful to his defense, it seems reasonable to assume that he would have asked that the trial be held as quickly as possible after his return. Had he done so, that would have been a compelling argument in his favor. In summation, we think that the Supreme Court's observation that '(t)he more serious the deprivation, the more likely a defendant is to complain' is particularly appropriate here. Barker v. Wingo, supra, at 531, 92 S.Ct. at 2192.

We now turn to the other asserted grounds for reversal. The defendant contends that the trial court erred in admitting certain expert testimony introduced by the Commonwealth to prove that the murder victim was the defendant's wife, Mary Gilbert. The facts pertinent to this issue may be briefly summarized. On June 11, 1967 off the coast of Gloucester, a fisherman was engaged in the common fishing practice of dragging a large net along the ocean floor. At a point beyond the three mile territorial waters of Massachusetts, he pulled up his net and discovered a plastic bag containing what he believed to be human remains. He turned the bag and its contents over to the police, and on June 20, a medical examiner made an analysis. In the bag he found two feet, two lower legs, a mid portion of the trunk from the thoracic vertebra to the fourth lumbar vertebra, with...