Barry v. Com.

• Decision Date: 05 October 1983
• Citation: 390 Mass. 285,455 N.E.2d 437
• Parties: Joseph A. BARRY v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 437

455 N.E.2d 437

390 Mass. 285

Joseph A. BARRY v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts Suffolk.

Argued May 3, 1983.

Decided Oct. 5, 1983.

Stephen Hrones, Boston, for defendant.

Linda M. Poulos, Asst. Dist. Atty., for the Commonwealth.

David M. Skeels, Arlington, for Christos Xaros, amicus curiae, submitted a brief.

Francis X. Bellotti, Atty. Gen., Frederick W. Riley, Barbara A.H. Smith & Carlo A. Obligato, Asst. Attys. Gen., for the Attorney General, amicus curiae, submitted a brief.

Harvey A. Silverglate, Judith H. Mizner and Alan Dershowitz, Boston, for Barry Levin, amicus curiae, and James D. St. Clair & Robert D. Keefe, Boston, for Earle Groper, amicus curiae, submitted a brief.

Before HENNESSEY, C.J., and LIACOS, NOLAN, LYNCH and O'CONNOR, JJ.

LIACOS, Justice.

Joseph A. Barry (the defendant) filed a motion to dismiss his indictments, claiming that he had not been brought to trial within twelve months as required by Mass.R.Crim.P. 36(b), 378 Mass. 909 (1979). A hearing was held the next day, September 8, 1982, and a motion judge in the Superior Court denied the motion. The defendant filed a petition under G.L. c. 211, § 3, for interlocutory relief, and a single justice of this court reserved and reported the case to the full bench. We conclude that the judge of the Superior Court was correct in denying the defendant's motion to dismiss and remand the case to the Supreme Judicial Court for Suffolk County (single justice session) for entry of a judgment denying the petition for relief under G.L. c. 211, § 3.

The relevant facts may be stated briefly. On July 6, 1981, a grand jury returned indictments against the defendant, Joseph A. Barry, and three codefendants, Martin McCauley, Carlos Mesa, and Edward White. Barry was indicted for three counts of armed robbery and one count of murder, and was arraigned on July 9, 1981. The indictments arose out of an incident which occurred at the Casa Romero restaurant in Boston on June 27, 1981. The alleged perpetrators were apprehended shortly after the incident, with the exception of White who eluded capture until February 12, 1982. All the suspects allegedly made statements which incriminated themselves and the others. These statements presented a potential problem if the Commonwealth proceeded against the perpetrators jointly. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). But see Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979).

On July 9, 1981, the court ordered a pretrial conference report to be filed on July 30, 1981. See Mass.R.Crim.P. 11, 378 Mass. 862 (1979). On July 30, 1981, Barry's case was continued by agreement until August 13, 1981, for the filing of the report. ¹ On August 13, 1981, the report was filed, and the court granted twenty-one days for the filing of pretrial motions, ² and the case was "[c]ontinued to November 2, 1981 for trial by agreement." On September 2, 1981, Barry filed several motions, including a motion to suppress. November 2 went by without the parties' having taken any action. A bail reduction hearing was held on December 23, 1981. On January 26 and 27, 1982, a hearing was held on the motion to suppress, and the motion was taken under advisement. On June 14, 1982, findings of fact, rulings of law, and an order were filed as to the motion to suppress.

During this period, the cases of Barry's codefendants took their course. The Commonwealth proceeded first against McCauley, the alleged trigger man, and he was convicted of murder in the first degree. White was apprehended and pleaded guilty to murder in the second degree. Mesa was not tried before the filing of Barry's motion to dismiss. Mesa filed a motion to suppress on November 2, 1981, and a hearing was held on June 18 and 21, 1982. His motion was denied on July 14, 1982.

On August 6, 1982, the Commonwealth answered that it was ready for trial in the case of Commonwealth vs. Barry, and indicated that further delay might create a problem under rule 36. Barry's counsel requested a delay because the transcripts of McCauley's trial would be available at the end of the month. Defense counsel stated that he wanted the "transcript before going to trial since it's important to have the testimony of the witnesses." The judge denied the request, stating that he intended to hold the case for trial. He also indicated that whether the case would be tried immediately would turn on the progress of an other case which was set for trial. ³ Defense counsel did not object to this action. The judge who heard Barry's motion to dismiss was not the judge who presided on August 6. The judge who decided the motion to dismiss found that Barry was not prepared for trial on August 6, and "that it suited the defendant's convenience that the trial take place after the trial judge completed the case presently before him."

Barry was not tried in August, and, on September 7, 1982, he filed the rule 36 motion to dismiss for lack of a speedy trial. The case was continued until September 8 for a hearing. After the hearing, the motion judge denied the motion orally and entered written findings and an order on September 14, 1982. A single justice of this court stayed Barry's trial on September 9, 1982, and reserved and reported the case on December 14, 1982. ⁴

The judge in the Superior Court found that Barry had made a prima facie showing of delay under rule 36 since the period between the return date, July 9, 1981, and the filing of his motion to dismiss, September 7, 1982, exceeded twelve months, and that the burden of justification for the delay falls on the Commonwealth. He further found that sufficient evidence was introduced to warrant a finding that the delay had been justified. He also found that the delay caused by the Commonwealth's pursuit of the fugitive White was a reasonably excusable time under rule 36(b)(2)(B), since White and Barry were initially joined for trial and there was no cause for severance within the meaning of rule 36(b)(2)(E). ⁵ The judge found that an additional thirty days were excludable for the period the motion to suppress was under advisement. Rule 36(b)(2)(A)(vii). Lastly, he found that the period from August 6, 1982, to September 7, 1982, was excludable as a continuance granted in the interest of justice within the meaning of rule 36(b)(2)(F). Since these excludable periods extended the date under rule 36 within which Barry had to be tried, the judge denied the motion to dismiss.

The record before us consists of the judge's memorandum explaining his reasons for denying the motion to dismiss, the transcript of the hearing held on September 8, 1982, the transcript of the proceedings of August 6, 1982, the dockets, the minutes of the Superior Court clerk for criminal business in the cases of Barry and his codefendants, Barry's petition and supporting memorandum for relief under G.L. c. 211, § 3, and a temporary restraining order staying the trial issued by the single justice. To a large extent, we are in as good a position as the judge below to decide whether the time limits imposed by the rule have run. The only matter on which the judge was in a better position is with regard to the credibility of the witnesses who testified at the September 8 hearing. ⁶ That advantage is not significant here, as there was no serious dispute as to the facts in the hearing before the judge in the Superior Court. When a claim is raised under rule 36, the docket and minutes of the clerk are prima facie evidence of the facts recorded therein. See G.L. c. 221, § 14 (clerks shall attend all the courts of which they are clerks and shall record their proceedings). ⁷ In these cir cumstances, while we will give deference to the determination made by the judge below, we may reach our own conclusions. See Brookline v. Goldstein, 388 Mass. 443, 447, 447 N.E.2d 641 (1983).

In determining the proper construction of rule 36, we are guided by its language as well as the mandates of Mass.R.Crim.P. 2(a), 378 Mass. 844 (1979), that the "rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of expense and delay." In their briefs, the parties have referred also to other sources. ⁸ "This rule is taken in part from the ABA Standards Relating to Speedy Trial (Approved Draft, 1968) and to a lesser extent from the Federal Speedy Trial Act, 18 USC §§ 3161-74 (Supp 1, 1975), and former GL c 277, §§ 72 (St 1784, c 72) and 72A (St 1965, c 343)." Reporters' Notes to Mass.R.Crim.P. 36, Mass.Ann.Laws, Rules of Criminal Procedure at 524 (Law. Co-op. 1979). The Reporters' Notes provide insight into the proper construction of the rule. Federal decisions which construe the Federal Speedy Trial Act (Federal Act) may be relevant, at least where the language of the Federal Act closely parallels the language of the rule. ⁹ We also consider the relevance of case law under former G.L. c. 277, §§ 72 and 72A.

Rule 36 provides that a defendant must be brought to trial within a certain period of time after the "return day." Mass.R.Crim.P. 36(b)(1)(A)-(C). ¹⁰ The "return day" is "the day upon which a defendant is ordered by summons to first appear or, if under arrest, does first appear before a court to answer to the charges against him, whichever is earlier." Mass.R.Crim.P. 2(b)(15). Rule 36(b) also provides that certain periods shall be excluded from the computation of the period within which the defendant must be tried. "Once the defendant has established a prima facie delay, and the Commonwealth offers no justification, the defendant is entitled to dismissal of the indictment without a showing of prejudice. See Mass.R.Crim.P. 36(b)(1)(D), 378 Mass. 910 (1979), and Reporter's Notes." Commonwealth v. Look, 379 Mass. 893, 898-899 n. 2, 402 N.E.2d 470, cert. denied, 449 U.S. 827, 101 S.Ct. 91, 66...