Com. v. Beckett

• Citation: 366 N.E.2d 1252,373 Mass. 329
• Decision Date: 14 September 1977
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1252

366 N.E.2d 1252

373 Mass. 329

COMMONWEALTH v. Ellen G. BECKETT.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Feb. 8, 1977.

Decided Sept. 14, 1977.

Alfred D. Ellis, Cambridge, for defendant.

James W. Sahakian, Sp. Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

WILKINS, Justice.

The defendant appeals from her conviction of conspiracy to steal money of a value of more than $100 from the Commonwealth. The charge was based on a claim that the defendant and her husband, Paul S. Beckett, conspired to commit larceny by false pretenses by misrepresenting to the Department of Public Welfare that her husband did not live with the defendant and their daughter, with the intended result that the defendant would appear to qualify for, and thus to receive, aid to families with dependent children (A.F.D.C.).

The defendant argues that (1) she was denied her constitutional right to a speedy trial, (2) evidence of an admission made by her husband outside her presence was improperly admitted against her, and (3) her motion for a directed verdict was improperly denied. We transferred the appeal here on our own motion. There was no error.

1. We consider first the defendant's contention that the judge erred in denying her motion to dismiss the indictment for failure to grant a speedy trial. The indictment was returned in June, 1971. The motion to dismiss was filed on October 31, 1975. Trial commenced on January 20, 1976.

A delay of fifty-five months between indictment and trial is substantial and requires serious consideration whether the defendant was denied a speedy trial in violation of her constitutional rights. This delay is longer than the delay in any other case in which we have held that a defendant's constitutional right to a speedy trial was not infringed. See, e. g., Commonwealth v. Gilbert, 366 Mass. 18, 21, 314 N.E.2d 111 (1974) (thirty-one months); Commonwealth v. Horne, 362 Mass. 738, 739, 291 N.E.2d 629 (1973) (forty-eight months). See also Commonwealth v. Burhoe, --- Mass.App. ---, --- ^a, 337 N.E.2d 913 (1975) (thirty-eight months). In Commonwealth v. Green, 353 Mass. 687, 689-690, 234 N.E.2d 534 (1968), we concluded that prejudice was necessarily inherent where the delay was fifteen years, held that the defendant was denied his right to the speedy trial guaranteed by art. 11 of the Declaration of Rights of the Constitution of the Commonwealth, and indicated that the indictments must be dismissed.

In cases involving a claim that a defendant was denied his constitutional right to a speedy trial, we have applied the criteria set forth in Barker v. Wingo, 407 U.S. 514, 530-533, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). See, e. g., Commonwealth v. Dabrieo, --- Mass. ---, --- - --- ^b, 352 N.E.2d 186 (1976); Commonwealth v. Boyd, 367 Mass. 169, 179-181, 326 N.E.2d 320 (1975); Commonwealth v. Gove, 366 Mass. 351, 361-365, 320 N.E.2d 900 (1974); Commonwealth v. Gilbert, supra, 366 Mass. at 21-23, 314 N.E.2d 111. In the Barker case, where the period between indictment and trial was sixty months, the Supreme Court of the United States indicated four factors which should be weighed: (1) the length of the delay; (2) the reasons for the delay; (3) the extent, if any, to which the defendant asserted his right to a speedy trial; and (4) the extent of any prejudice to the defendant resulting from the delay. Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. 2182. The Supreme Court did not conclude that a delay of sixty months was inherently a deprivation of the defendant's rights. Each relevant factor must be weighed in the circumstances of the case. We shall consider the factors, in addition to the length of the delay, which are set forth in Barker v. Wingo, supra at 530, 92 S.Ct. 2182.

In this case the principal reason for the delay was court congestion. There is no suggestion that the Commonwealth intentionally delayed the defendant's trial. However, court congestion is not the responsibility of the defendant and must be weighed against the Commonwealth in assessing the reasons for the delay. But the weight to be given to such a cause for delay is not so heavy as a deliberate prosecutorial attempt to delay a trial. Commonwealth v. Dabrieo, supra at ---, --- n. 2 ^c, 352 N.E.2d 186 (1976); Commonwealth v. Gove, supra, 366 Mass. at 363, 320 N.E.2d 900; Commonwealth v. Burhoe, --- Mass.App. ---, --- ^d, 337 N.E.2d 913 (1975); Strunk v. United States, 412 U.S. 434, 436-437, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. 2182. Although "(c)rowded dockets, the lack of judges or lawyers, and other factors no doubt make some delays inevitable" (Dickey v. Florida, 398 U.S. 30, 38, 90 S.Ct. 1564, 1569, 26 L.Ed.2d 26 (1970)), the deficiencies of the system cannot be a defense to a claim of the denial of a prompt trial. United States v. Fay,505 F.2d 1037, 1040-1041 (1st Cir. 1974). Another reason for the delay, which the defendant asserted in support of her motion, was the fact that "the presiding justices have not assigned importance to this case." This circumstance, which is a natural consequence of congested dockets, also must be weighed against the Commonwealth.

Not all the delay, however, was the responsibility of the Commonwealth. Some delay apparently was caused by the unavailability of counsel, or a change of counsel, for her husband, the codefendant below. At one time the defendant requested a brief continuance because of a change of counsel. On another occasion, the docket shows that the case was taken off the list at the defendant's request. If, as the defendant asserts, this docket entry was in error, the defendant should have offered evidence during the hearing on the motion to dismiss in order to demonstrate that error. She did not do so.

The defendant has failed to show a diligent, or even casual, attempt to obtain a speedy trial. She did not object at any time to the numerous continuances which were granted. On May 28, 1974, she requested that the case be taken off the list. She filed no motion for a speedy trial, and, as far as the record shows, she first raised the question of her right to a prompt trial in October, 1975, when she moved to dismiss the case for failure to grant a speedy trial. Cf. Commonwealth v. Green, 353 Mass. 687, 688-689, 234 N.E.2d 534 (1968), where motions for a speedy trial were filed and denied six and eight years after the date of the indictments and then such a motion was filed fifteen years after the indictment which we ordered to be allowed.

A defendant who asserts that his right to a speedy trial has been abridged presents a strong case if he has established on the record that he diligently sought a trial. Delay, however, may benefit a defendant in particular circumstances, and a record which shows the defendant's indifference to the date of trial cannot strongly support a claim of the denial of his right to a speedy trial. Commonwealth v. Gilbert, 366 Mass. 18, 23, 314 N.E.2d 111 (1974). Barker v. Wingo, supra, 407 U.S. at 531-532, 534-536, 92 S.Ct. 2182. Here the first assertion of the denial of the defendant's right to a speedy trial occurred on October 31, 1975, and her trial commenced on January 20, 1976, not an inordinate further delay.

We consider finally the question whether the defendant was prejudiced by the delay. Although a delay may be so great as to be inherently prejudicial, especially in the absence of a contrary demonstration by the prosecution (Commonwealth v. Green, supra, 353 Mass. at 690, 234 N.E.2d 534), we have held generally that a defendant has the burden of showing prejudice to his defense sufficient to warrant dismissal. Commonwealth v. Gove, 366 Mass. 351, 361, 320 N.E.2d 900 (1974), and cases cited. A delay of over four and one-half years is substantial, and, if the defendant had been pressing diligently for trial during that period, or at least during a substantial later portion of that period, we would accept the proposition that the burden falls on the Commonwealth to establish the absence of prejudice to the defendant. Here, however, the defendant has not created a presumption of prejudice by persistently seeking a prompt trial, and we conclude that she has the burden of proving prejudice to her from the delay.

The evidence offered by the defendant in support of her motion to dismiss for want of a speedy trial does not demonstrate any substantial prejudice to her. The judge was plainly warranted in finding that she was not prejudiced. There was no claim that any witness was unavailable, nor any proof that any witness, potentially helpful to the defendant, had forgotten significant facts. The defendant put a potential Commonwealth witness on the stand in support of her motion. However, the failure of that prosecution witness to recall events and circumstances was not prejudicial to the defendant. The prejudice must be to the defense. See Commonwealth v. Gove, supra, 366 Mass. at 364, 320 N.E.2d 900; Barker v. Wingo, supra, 407 U.S. at 532, 534, 92 S.Ct. 2182; United States v. Shepherd, 511 F.2d 119, 124 (5th Cir. 1975) (faded memory of government witness aids defendant). In short, the defendant did not prove prejudice. There was no pre-trial incarceration, and there was no showing of anxiety or concern of the accused, who did not testify on the motion to dismiss. Barker v. Wingo, supra at 532, 92 S.Ct. 2182. ¹ There was no showing that, as the defendant argues, the prosecution witnesses' ability to identify her husband was solidified to her prejudice because those witnesses had numerous opportunities to identify him when the case was called from time to time.

The defendant argues that circumstances at the trial demonstrate that she was prejudiced because witnesses' memories suffered from the passage of time. We have reviewed the transcript of the entire trial, with particular attention to...