Com. v. Amidon

• Decision Date: 12 August 1998
• Citation: 698 N.E.2d 889,428 Mass. 1005
• Parties: COMMONWEALTH v. Julie M. AMIDON (and nine companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 889

698 N.E.2d 889

428 Mass. 1005

COMMONWEALTH v. Julie M. AMIDON (and nine companion cases ¹).

Supreme Judicial Court of Massachusetts.

Aug. 12, 1998.

Anne M. Kendall, Assistant District Attorney, for the Commonwealth.

R. Brian Snow, Nashua, NH, for Floyd A. Amidon, Jr. Karen Elizabeth Morth, Brooklyn, NY, for Julie M. Amidon.

Richard L. Goldman, Granby, for David Cook, submitted a brief.

RESCRIPT.

All three defendants were indicted in January, 1994, for various drug distribution offenses and other related charges. The Commonwealth intended to try all three defendants together. Although each case is procedurally distinct, the common thread is that the defendants claim that the Commonwealth failed to bring them to trial within one year, as prescribed by Mass. R.Crim. P. 36, 378 Mass. 909 (1979). Several months after the one year anniversary of their respective arraignments, each defendant filed a motion to dismiss on speedy trial grounds. The judge, who presided over all four trials, allowed each defendant's motion and the Commonwealth appealed.

The Appeals Court affirmed the judge's dismissal of the indictments in one published opinion, Commonwealth v. Amidon, 44 Mass.App.Ct. 338, 691 N.E.2d 229 (1998), and three unpublished decisions that relied on and were controlled by the published opinion. ² We allowed the Commonwealth's applications for further appellate review as to all three defendants. We now affirm the judge's order dismissing the indictments in Commonwealth v. Amidon (No. 1), 44 Mass.App.Ct. 1115, 691 N.E.2d 251 (1998), but vacate the judge's orders as to the other three indictments. We discuss each defendant and the procedural intricacies separately.

1. Julie M. Amidon. ³ Julie Amidon was arraigned on February 4, 1994. She filed her motion to dismiss, pursuant to rule 36, on July 3, 1995. Accordingly, the prosecutor had 148 days to justify of the 513 days the case was pending. See Commonwealth v. Amidon, supra at 342-343, 691 N.E.2d 229. See also Barry v. Commonwealth, 390 Mass. 285, 294, 455 N.E.2d 437 (1983) (the filing of a motion to dismiss under rule 36 "tolls the running of the time in which a defendant must be tried").

On appeal, the Commonwealth argued that the 102 days between May 2, 1994, and August 11, 1994, should be excluded from the calculation. This time period represents the difference between the deadline by which the defendant agreed to file pretrial motions and when she actually filed her first pretrial motion. We agree that this time should count against the defendant for essentially those reasons cited by the Appeals Court. See Commonwealth v. Amidon, supra at 341, 691 N.E.2d 229.

The Commonwealth further contends that an additional sixty-one days should be excluded, which would bring it safely within the parameters of rule 36. Specifically, it seeks to exclude the time between March 2, 1994, and May 2, 1994--constituting the time period within which "the parties agreed to extend the time for filing pretrial motions beyond the seven days required by Mass. R.Crim. P. 13(d)(2)(A), 378 Mass. (1978)" (emphasis in original). Id. at 340, 691 N.E.2d 229. The judge's decision not to exclude these two months appears primarily motivated by the parties' failure to obtain leave of court to extend this seven-day deadline. See id. See also Mass. R.Crim. P. 13(d)(2)(A).

Although we appreciate the judge's irritation at the parties' callous attitude toward the requirements of rule 13(d)(2)(A), and we do not condone the parties' violation of that rule, we disagree with the contention that this time should not be counted against the defendant. See Commonwealth v. Farris, 390 Mass. 300, 304, 455 N.E.2d 433 (1983), quoting Barry v. Commonwealth, supra at 290, 455 N.E.2d 437 ("while we will give deference to the determination made by the judge below, we may reach our own conclusions"). The parties mutually agreed to the May 2 deadline, and, accordingly, the defendant acquiesced in this delay. See Barry v. Commonwealth, supra at 296 n. 13, 455 N.E.2d 437 ("[u]nless the defendant agrees to the extension of [the period for filing pretrial motions]," the seven-day time limit under the rule is not excluded). Indeed, the Appeals Court correctly acknowledged that "both parties shared some fault" for this violation of rule 13. Commonwealth v. Amidon, supra at 340, 691 N.E.2d 229. Dismissal of an indictment is not "appropriate if a defendant is at least partially responsible for delay." Commonwealth v. Lauria, 411 Mass. 63, 68, 576 N.E.2d 1368 (1991), quoting Barry v. Commonwealth, supra at 297, 455 N.E.2d 437.

Moreover, the defendant permitted the May 2 deadline to pass without filing any pretrial motions until several months thereafter. ⁴ Given the defendant's inability to adhere to an already generous filing deadline, to which she agreed, it is highly unlikely that she would have timely filed pretrial motions even if the parties had agreed to the seven-day time limit under rule 36 or obtained leave to extend the filing date to May 2, 1994.

After subtracting 102 days and fifty-four days ⁵ from the 513 days the defendant's case was pending, the Commonwealth is within the allotted time to try the defendant under rule 36. ⁶ The order dismissing the indictment against this defendant is reversed and the case is remanded to the Superior Court for further proceedings. ⁷

2. Floyd A. Amidon, Jr. (No. 2) (indictments 940009 and 940010). On January 24, 1994, this defendant was arraigned and the Commonwealth filed a "certificate" that discovery had been provided to him. Although a pretrial conference was held on February 15, 1994, no pretrial conference report was ever filed. As a result, no deadline was set for the filing of pretrial motions. Beginning on November 28, 1994, and continuing through February 23, 1995, the defendant filed a series of pretrial motions that were both substantive and discovery oriented. ⁸ The running of the clock for rule 36 purposes was tolled on June 26, 1995, by the defendant's filing of his motion to dismiss. See Commonwealth v. Spaulding, 411 Mass. 503, 505 n. 4, 583 N.E.2d 1257 (1992); Barry v. Commonwealth, supra at 294, 455 N.E.2d 437. Of the 517 days the defendant's case was pending, the Commonwealth needed to justify 152 days of delay. Therefore, the period of approximately nine months between the pretrial conference and the filing of the defendant's first motion on November 28, 1994, is critical to the resolution of the defendant's claimed deprivation of a speedy trial.

We recently have reiterated the familiar principle that criminal defendants, in addition to having an obligation to object to delay, also have a "responsibility to 'press their case through the criminal justice system.' " Commonwealth v. Marable, 427 Mass. 504, 507, 693 N.E.2d 1386 (1998), quoting Commonwealth v. Lauria, supra at 68, 576 N.E.2d 1368. In this case, the defendant took advantage of the fact that there was no pretrial conference report filed, and no steadfast deadline for filing pretrial motions, by submitting motions many months after the pretrial conference. There is no evidence in the record, perhaps for obvious reasons, that the defendant objected to the pretrial report not having been filed. Generally, "[w]here a date is set for the filing of reports ... and the defendant does not enter an objection when the date passes without any action being taken, he will be deemed to have acquiesced in delay." Barry v. Commonwealth, supra at 298 n. 16, 455 N.E.2d 437.

Moreover, although the defendant's attitude toward the speed at which his case progressed changed after he filed his motions, there is no indication that he objected to the inactivity during the preceding nine months. "[A] disinterested attitude by a defendant in the progress of his case can permit a finding of acquiescence." Commonwealth v. Lauria, supra at 68, 576 N.E.2d 1368. We see no appreciable distinction between the nine months at issue here and the two months between March and May which we excluded in Julie Amidon's case.

Accordingly, we exclude the period of time between February 22, 1994 (the presumptive return date for motions had a pretrial report been filed at the conference), and November 28, 1994. Because this period far exceeds the number of days the Commonwealth had to justify, we vacate the judge's order allowing this defendant's motion to dismiss and remand the case to the Superior Court. We again reserve comment on what days, if any, should be excluded as a result of the defendant's difficulty in scheduling hearings after he filed his motions.

3. David Cook. This defendant was arraigned on February 4, 1994. A pretrial conference report was filed on February 23, 1994, in which the parties agreed to a continuance until April 23, 1994, for further conferencing. ⁹ However, there is no evidence in the record that a further conference occurred and the defendant did not file any pretrial motions in his case. In fact, the defendant's case remained inactive until July 10, 1995, when he filed a motion to dismiss under rule 36.

This defendant stands on slightly different footing from his codefendants insofar as there is no evidence that he made any objection to the delays associated with either his case or that of his codefendants with whom he was to be tried. Although counsel for his codefendants complained about their difficulty in scheduling hearings on their motions when they were finally heard on June 13, 1994 and July 5, 1994, this defendant did not appear at either hearing, nor did he join in his codefendants' objections to the delay by written motion. In fact, the record does not reflect any motion by this defendant to join or adopt his codefendants' motions.

Instead, this defendant seemed content to let his codefendants' cases run their courses and then, presumably, reap whatever benefit resulted from their efforts. Notably, he was the last one to file a motion to dismiss and he did so...