Com. v. Burhoe

CourtAppeals Court of Massachusetts
Writing for the CourtBefore HALE; HALE
Citation3 Mass.App.Ct. 590,337 N.E.2d 913
PartiesCOMMONWEALTH v. Lawrence BURHOE.
Decision Date02 December 1975

Page 913

337 N.E.2d 913
3 Mass.App.Ct. 590
COMMONWEALTH
v.
Lawrence BURHOE.
Appeals Court of Massachusetts, Middlesex.
Argued Oct. 15, 1975.
Decided Dec. 2, 1975.

Page 914

Daniel F. Toomey, Boston, for defendant.

Bonnie H. MacLeod-Griffin, Asst. Dist. Atty., for Commonwealth.

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

HALE, Chief Justice.

The defendant appeals under G.L. c. 278, §§ 33A--33G, following his conviction by a Superior Court judge sitting without jury on separate indictments charging armed robbery, assault and battery with a dangerous weapon, and unlawful possession of a firearms, all arising out [3 Mass.App.Ct. 591] of a nighttime holdup of a Seven-Eleven food store in Billerica. 1 Indictments were returned on July 21, 1971, and trial was held on September 10, 1974. The defendant assigns as error the denial of his motions to dismiss for want of a speedy trial, a right guaranteed to him under both the United States and Massachusetts Constitutions. 2

The Sixth Amendment to the Constitution of the United States provides that '(i)n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.' 3 This right has been applied to the states by virtue of the Fourteenth

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Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). The defendant became the 'accused' when he was indicted, and his right to a speedy trial attached at that time. United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Commonwealth v. Horan, 360 Mass. 739, 740--741, 277 N.E.2d 491 (1972).

Once the right to a speedy trial has attached, one must employ the 'difficult and sensitive balancing process' mandated by Barker v. Wingo to determine whether that right has been abridged. 407 U.S. 514, 530--533, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The factors to be considered are the '( l)ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.' Commonwealth v. Gove,--- Mass. ---, --- a, 320 N.E.2d 900, 908 (1974), quoting Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. 2182.

These factors were considered by a Superior Court judge on the defendant's motions to dismiss. Following an evidentiary hearing, the motions were denied, and the judge filed findings of fact and rulings. To the extent that the judge's [3 Mass.App.Ct. 592] findings are supported by the evidence, they will be sustained. See Commonwealth v. Jones, 360 Mass. 498, 502, 275 N.E.2d 143 (1971). Cf. Commonwealth v. McGrath, 361 Mass. 431, 437, 280 N.E.2d 681 (1972); Commonwealth v. Murphy, 362 Mass. 542, 547, 289 N.E.2d 571 (1972).

1. The length of the delay (thirty-eight months between indictment and trial) is a clearly sufficient to justify serious concern and requiries inquiry into the other three factors. Compare Commonwealth v. Gilbert, --- Mass. ---, --- b, 314 N.E.2d 111 (1974) (thirty-one months); Commonwealth v. Underwood, --- Mass.App. ---, --- c, 335 N.E.2d 915 (1975) (twenty-six months). Contrast COMMONWEALTH V. KENNEDY, --- MASS.APP. --- , 323 N.E.2D 910 (1974)D (four months).

2. The balancing test of Barker v. Wingo mandates consideration of whether the defendant has asserted his right to a speedy trial. For this purpose, we shall view the defendant's May 17, 1973, motion to dismiss as a demand for speedy trial. This motion was filed almost two years after the indictments, and immediately after its denial trial was postponed for a considerable period because of vacation plans of defense counsel. In June of 1974, the defendant, acting pro se, filed a motion for a speedy trial and another for dismissal. In July his counsel filed another motion to dismiss based on want of a speedy trial. Although the defendant may not have been constantly pressing for the disposition of his cases, his efforts demonstrate sufficient concern for the preservation of his right to a speedy trial.

3. Next we must consider the reasons for the delay. The motion judge found that there had been twenty-six or twenty-seven continuances, many unexplained and apparently unobjected to. 4 While he was

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unable to determine the [3 Mass.App.Ct. 593] reason for each one of the continuances, he was able to identify a number of factors which contributed to the delay. The delays were caused in part by the failure of the defendant to appear as scheduled for arraignment, defendant's discovery motions, defense counsel's vacation plans, and a change of defense counsel. Attempts at plea bargaining, congested calendars, and summer recesses also contributed to the delay. But most important a delay of nearly eleven months was caused by a clerical error in the District Attorney's office. 5

[3 Mass.App.Ct. 594] In denying the defendant's motion to dismiss for lack of a speedy trial, the motion judge found '. . . as a fact that at no time during the long period while these cases were pending did any of the prosecuting officers intentionally delay the trial of these cases. In fact, on several occasions on which these cases appeared on the trial list the Commonwealth's witnesses were present in the courtroom and available for trial.' This finding is not challenged by the defendant. Instead, the defendant asserts that the Commonwealth's negligent misfiling of the case jacket mandates dismissal.

The finding that the Commonwealth did not intentionally delay the trial does not excuse the delay. The Commonwealth must take 'reasonable action to prevent undue delay in bringing a defendant to trial.' Commonwealth v. Horne, 362 Mass. 738, 743, 294 N.E.2d 437 (1973), quoting Commonwealth v. McGrath, 348 Mass. 748, 752, 205 N.E.2d 710, 714 (1965). But although the Commonwealth is ultimately responsible for delays caused by administrative neglect and overcrowded courts, these reasons should be weighed less heavily than an intentional prosecutorial attempt to frustrate the defense. See Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. 2182; COMMONWEALTH V. GOVE, --- MASS. AT --- , 320 N.E.2D 900E.

While it is clear that some of the delay must be attributed to the Commonwealth, that in itself does not require dismissal. See Commonwealth v. Steadman,

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17 practice notes
  • Com. v. Campbell
    • United States
    • Appeals Court of Massachusetts
    • August 10, 1977
    ...Wingo factors. See Commonwealth v. Gove, 366 Mass. at 362, n. 13, 320 N.E.2d 900; Commonwealth v. Burhoe, --- Mass.App. ----, ---- bb , 337 N.E.2d 913 (1975). Contrast Commonwealth v. Kennedy, --- Mass.App. ---- cc , 308 N.E.2d 918 2. Reasons for the Delay. We have already discussed the rea......
  • Com. v. Beckett
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 14, 1977
    ...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 necessar......
  • Com. v. Jones
    • United States
    • Appeals Court of Massachusetts
    • December 26, 1978
    ...as seriously as would an intentional attempt to delay the proceedings. See, e.g., Commonwealth v. Burhoe, 3 Mass.App. ---, --- N, 337 N.E.2d 913 (1975); Commonwealth v. Blaney, 5 Mass.App. ---, --- º, 359 N.E.2d 958 The delay from the March 31 bindover hearing to May 13, when the indictment......
  • Com. v. Lauria, No. 90-P-247
    • United States
    • Appeals Court of Massachusetts
    • November 28, 1990
    ...as extended, run out. The government is ultimately responsible for system failure and overcrowded courts. See Commonwealth v. Burhoe, 3 Mass.App.Ct. 590, [29 Mass.App.Ct. 550] 593-594, 337 N.E.2d 913 (1975); Misner, Speedy Trial--Federal and State Practice § 15, at 210, § 17, at 278 (1983) ......
  • Request a trial to view additional results
17 cases
  • Com. v. Campbell
    • United States
    • Appeals Court of Massachusetts
    • August 10, 1977
    ...Wingo factors. See Commonwealth v. Gove, 366 Mass. at 362, n. 13, 320 N.E.2d 900; Commonwealth v. Burhoe, --- Mass.App. ----, ---- bb , 337 N.E.2d 913 (1975). Contrast Commonwealth v. Kennedy, --- Mass.App. ---- cc , 308 N.E.2d 918 2. Reasons for the Delay. We have already discussed the rea......
  • Com. v. Beckett
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 14, 1977
    ...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 necessar......
  • Com. v. Jones
    • United States
    • Appeals Court of Massachusetts
    • December 26, 1978
    ...as seriously as would an intentional attempt to delay the proceedings. See, e.g., Commonwealth v. Burhoe, 3 Mass.App. ---, --- N, 337 N.E.2d 913 (1975); Commonwealth v. Blaney, 5 Mass.App. ---, --- º, 359 N.E.2d 958 The delay from the March 31 bindover hearing to May 13, when the indictment......
  • Com. v. Lauria, No. 90-P-247
    • United States
    • Appeals Court of Massachusetts
    • November 28, 1990
    ...as extended, run out. The government is ultimately responsible for system failure and overcrowded courts. See Commonwealth v. Burhoe, 3 Mass.App.Ct. 590, [29 Mass.App.Ct. 550] 593-594, 337 N.E.2d 913 (1975); Misner, Speedy Trial--Federal and State Practice § 15, at 210, § 17, at 278 (1983) ......
  • Request a trial to view additional results

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