Com. v. Ambers

• Court: Appeals Court of Massachusetts
• Writing for the Court: Before HALE; KEVILLE
• Citation: 357 N.E.2d 323,4 Mass.App.Ct. 647
• Decision Date: 24 November 1976
• Parties: COMMONWEALTH v. Warren AMBERS.

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357 N.E.2d 323 4 Mass.App.Ct. 647 COMMONWEALTH v. Warren AMBERS. Appeals Court of Massachusetts, Suffolk. Argued May 10, 1976.
Decided Nov. 24, 1976.

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Fern L. Nesson, Cambridge, for defendant.

Daniel C. Mullane, Asst. Dist. Atty., for the Commonwealth.

Before HALE, C.J., and KEVILLE and GOODMAN, JJ.

KEVILLE, Justice.

The defendant was tried to a jury and convicted of assault and battery by means of a dangerous weapon, and of breaking and entering in the nighttime and armed assault. He appeals pursuant to G.L. c. 278, §§ 33A--33G. His contentions are that he was denied a speedy trial in violation of his rights under G.L. c. 277, § 72A, and that the judge erred in denying his motion to dismiss the indictments based on the failure to grant him such a trial.

On November 15, 1973, the defendant was indicted by a grand jury. He was arraigned on December 5. On February 27, 1974, when the case was called for trial, the defendant failed to appear, and one of his

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witnesses was in Puerto Rico. Defense counsel was granted a continuance to May 6. On that date, the defendant failed to appear for trial and was defaulted.

In July, 1974, the defendant was arrested on an unrelated charge, tried and convicted. He received a sentence of two years in a house of correction. On August 1, his application for a speedy trial under G.L. c. 277, § 72A, was received and docketed. ¹ On October 3, 1974, the judge denied the defendant's oral motion to remove the May 6 default and scheduled a pre-trial conference for October 21. No conference took place on that day, apparently because, according to the district attorney, he and defense counsel had been unable to meet. The conference was eventually held on November 26, and a trial date was set for January 13, 1975.

On January 13, the Commonwealth was granted a continuance because of the death of the police officer who had brought the complaint. Defense counsel objected and excepted to the granting of this continuance. The district attorney and the judge agreed on a trial date of March 12. On that day the Commonwealth requested a continuance because a police witness was out of the country. This request was granted and trial set for April 10, by agreement of defense counsel and the district attorney. The defendant's counsel stated, 'I, for the record, would take an exception, but Mr. Mullane (the assistant district attorney) tells me he would be ready to go in April.' When asked by the judge if April 10 would be agreeable, the defendant's counsel replied, 'Yes, it is,' and did not repeat his objection or take an exception although it was clear that the continuance had been granted. The docket entries indicate that the continuance was by agreement of both parties and no exception was noted.

On April 10, 1975, the case was called but was assigned to a trial session to begin on April 15, apparently because the district attorney was engaged in the trial of another case. However, the case was not reached because of the busy trial schedule in that session and the case was returned to the original session. On May 2, it was continued to June 9 at the request of the Commonwealth in the absence of the defendant's counsel. No transcript exists of the proceeding. On June 5, the defendant filed a motion to dismiss for failure to grant a speedy trial under G.L. c. 277, § 72A. When both sides answered ready for trial on June 9, the case was sent to another session. On June 19, the case was called for trial but was continued because of the absence of one of the Commonwealth's witnesses, who had missed a ride from her home in Maine and had refused to use public transportation despite the fact that the Commonwealth had offered to pay her expenses. The defendant excepted to the granting of the continuance.

On June 23, 1975, the judge denied the defendant's motion to dismiss for failure to grant a speedy trial. He based the denial on his belief that the motion was invalid because of the defendant's earlier default and the failure of the defendant to preserve his objection to the March 12 continuance. The trial began on June 23, 1975, in the Superior Court and on the next day the defendant was found guilty on both indictments.

General Laws c. 277, § 72A, as appearing in St.1965, c. 343, provides for notification to a prisoner of any untried indictment, information or complaint pending against him, after which he may file an application for speedy trial and 'shall, within six months after such application is received by the court, be brought into court for trial or other disposition of any such indictment, information or complaint, unless the court shall otherwise order.' It is a statute intended to expedite and dispose of charges pending against an individual who is already serving a term of imprisonment. Commonwealth v. Stewart, 361 Mass. 857, 279 N.E.2d 697 (1972). Commonwealth v.

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Gove, --- Mass. ---, ---, ^a , 320 N.E.2d 900 1974). Commonwealth v. Underwood, --- Mass.App. ---, ---,^b 335 N.E.2d 915 (1975). This statute should not be regarded as a broad gauge attempt to solve all problems incident to the concept of a speedy trial. Gove, supra, at ---, ^c 279 N.E.2d 697.

The fact that the defendant was defaulted prior to his application under c. 277, § 72A, does not affect the validity of that application.² The question is whether the statutory requirements were met even though the continuances granted resulted in a postponement of the trial to a time beyond the six month's period. The defendant filed his application under § 72A on August 1, 1974. By February 1, 1975, six months thereafter, the parties had completed a hearing on removal of the default and a pre-trial conference. The case had been called once for trial, on January 13, 1975, and continued until March 12.

It has been held in a number of cases that the statute does not actually require that the trial be completed within six months of a defendant's application under § 72A. Where the application is filed with respect to a complaint pending in a District Court, the six months' requirement is satisfied by an arraignment (Commonwealth v. Royce, 358 Mass. 597, 599, 266 N.E.2d 308 (1971); Commonwealth v. Fields, --- Mass. ---, ---, ^d 356 N.E.2d 1211 (1976)), a 'bind-over hearing' (id. at ---, n. 11, ^e 356 N.E.2d at 1217), or the return within that period of an indictment which charges the defendant with the same offense as that alleged in the complaint. Commonwealth v. Stewart, 361 Mass. at 858, 279 N.E.2d 697. Where the application is filed with respect to an existing indictment, it is sufficient that the jury be impanelled and the indictment read and pleas entered by the final day of the six months' period. Commonwealth v. Daggett, --- Mass. ---, ---, ^f 343 N.E.2d 409 (1976).

"General Laws c. 277, § 72A, does not compel a judge to dismiss an indictment if the case is not tried or otherwise disposed of within six months after an application for a speedy trial is 'received by the court.' " Commonwealth v. Loftis, 361 Mass. 545, 549, 281 N.E.2d 258, 261 (1972). Commonwealth v. Fields, 371 Mass. at...