Com. v. Campbell

Decision Date10 August 1977
Citation366 N.E.2d 44,5 Mass.App.Ct. 571
PartiesCOMMONWEALTH v. Grace CAMPBELL (and two companion cases 1 ).
CourtAppeals Court of Massachusetts

Jonathan Shapiro, Boston (Anne B. Goldstein, Boston, with him), for Grace Campbell.

Dennis J. LaCroix, Boston, for Rosalind Kelley.

Frances M. Burns, Asst. Dist. Atty. (James M. Lynch, Legal Asst. to the Dist. Atty., with her), for Com.

Before KEVILLE, GRANT and ARMSTRONG, JJ.

KEVILLE, Justice.

Grace Campbell (Campbell) was convicted of kidnapping and Rosalind Kelley (Kelley) of kidnapping and assault and battery by means of a dangerous weapon in connection with an incident at the home of Calvin Williams (Calvin) in Roxbury on May 27, 1974. They appeal pursuant to G.L. c. 278, §§ 33A-33G.

Shortly after midnight on that date Campbell, a friend of Calvin's wife (Nancy), appeared at the door of the Williamses' apartment and asked to use the bathroom. Either Calvin or Nancy let her in. While Campbell was in the bathroom, Kelley entered the apartment and accused Calvin of raping her sister. She was holding what appeared to be a pistol. When Calvin denied the accusation, he and Kelley began to struggle. Calvin testified that at one point he managed to wrest control of the gun from Kelley and give it to Campbell, who had emerged from the bathroom, but that Campbell handed the gun back to Kelley. Calvin also stated at trial that in the course of the fight Kelley cut him on the forehead with a knife.

After the scuffle, Calvin agreed to go with Kelley to ask her sister whether he had been the rapist. There was some dispute at the trial whether Calvin or Kelley initially suggested the idea of searching out Kelley's sister, but Calvin testified that he decided to go out of fear for himself and his family. He left his apartment at gunpoint with Kelley and Campbell.

Kelley directed Calvin across the street to a blue and white car and ordered him into the back seat with her. Campbell drove. A third woman, thought by Calvin to be Barbara Simpson (Simpson), who had at one time lived with Nancy during the latter's marital separation from Calvin, occupied the front passenger seat. Campbell drove to at least two places. At one of the places a young woman came downstairs, looked at Calvin in the car and said, "That's not the guy." Kelley told Calvin he should be glad he wasn't the one; then the women dropped Calvin at the Forest Hills MBTA station. He walked back to his and Nancy's apartment from there.

Meanwhile, Nancy had left the apartment to go to her sister-in-law's apartment around the corner to telephone the police. An officer arrived about twenty minutes later and took Nancy back to her apartment in his cruiser. Both Nancy and the officer testified that when they arrived back at the Williamses' apartment they saw Simpson carrying a portable television set belonging to the Williamses into a blue and white car. Campbell was sitting in the driver's seat and Kelley was in the back seat. The police officer immediately arrested Simpson and Campbell, but Kelley managed to escape. 2

Campbell and Kelley were indicted on February 10, 1975, after a probable cause hearing in the District Court, and arraigned on March 11, 1975. 3 At trial, in April, 1976, Campbell was convicted of kidnapping, and Kelley was convicted of kidnapping and assault and battery with a pistol but was acquitted of assault and battery with a knife. Both defendants were sentenced to indeterminate terms at M.C.I. Framingham to be served from and after sentences they were already serving on other convictions. They both argue that they were denied their constitutional and statutory rights to a speedy trial. Campbell also asserts several independent grounds for reversal underrepresentation of women on the grand jury which indicted her, prejudice on the part of the trial judge, errors of law in the conduct of the trial, and error in the denial of her motion for a directed verdict. We discuss each issue separately.

Section 72A

Speedy Trial Claim.

Both defendants argue that it was error for the trial judge to deny their motions to dismiss the indictments for failure to grant a speedy trial pursuant to G.L. c. 277, § 72A. 4 As Campbell and Kelley were both imprisoned as a result of convictions in other cases, they satisfy a primary requirement for protection under § 72A. Compare Commonwealth v. Dabrieo, --- Mass. ----, ---- - ---- a , 352 N.E.2d 186 (1976). Campbell faces another sort of threshold obstacle, however, in that she filed her application only with respect to certain other pending indictments not for the kidnapping charge leading to the conviction from which she now appeals. Campbell argues that her application should also be considered to cover her kidnapping indictment because the superintendent at M.C.I. Framingham failed to notify her of the kidnapping indictment as required by the statute. We agree. The Commonwealth has not attempted to rebut Campbell's contention that she was not

notified of the kidnapping charge. In light of the superintendent's obligation to inform her of the kidnapping indictment and Campbell's assertion of her statutory right with respect to other known indictments, we treat her § 72A application as encompassing the kidnapping charge. See Commonwealth v. Alexander, --- Mass. ----, ---- - ----, n.3 B , 359 N.E.2d 306 (1977). Compare Commonwealth v. Boyd, 367 Mass. ----, ---- c , 326 N.E.2d 320 (1975) (treating a motion for speedy trial as an application under § 72A, in the absence of an indication that the defendant was notified of his statutory rights).

Although we find § 72A applicable to Campbell, we do not believe that its application requires dismissal of the kidnapping indictment. It has been held repeatedly that § 72A does not compel the dismissal of an indictment if the case is not tried or otherwise disposed of within six months after an application for speedy trial is received by the court. Commonwealth v. Loftis, 361 Mass. 545, 549, 281 N.E.2d 258 (1972); Commonwealth v. Fields, --- Mass. ----, ---- d, 356 N.E.2d 1211 (1976). Commonwealth v. Alexander, --- Mass. ---- e, 359 N.E.2d 306 (1977). Commonwealth v. Ambers, --- Mass.App. ----, ---- f, 357 N.E.2d 323 (1976). The statute confers upon the judge the discretionary power to extend the six month period for good cause. Id. at ---- g, 357 N.E.2d 323. Here Campbell's trial began on April 6, 1976, six months and eighteen days after September 19, 1975 when she filed her application under § 72A. 5 Between the time of her application and the trial a series of continuances was granted. We need not examine each of them individually, as we did in Ambers, supra, however. Here the transcript shows that on September 25, 1975, six days following her § 72A application, her attorney, who had just been appointed to replace prior counsel, agreed to a continuance until October 20, 1975, to enable him to prepare for trial. Having agreed to the delay, Campbell waived her right to challenge that delay on appeal. Commonwealth v. Carr, --- Mass.App. ----, ---- - ---- h, 338 N.E.2d 844 (1975). Commonwealth v. Ambers, --- Mass.App. at ---- i , 357 N.E.2d 323. When that twenty-five day delay is discounted, the record shows that Campbell did go to trial within six months of her § 72A application. See Commonwealth v. Carrillo, --- Mass.App. ---- j , 361 N.E.2d 415 (1977) (involving a similar statute on interstate detainers). Thus we conclude that Campbell's rights under § 72A were not abridged. 6

Kelley also faces a statutory obstacle at the threshold in that she never filed an application for speedy trial pursuant to § 72A. However, there being no evidence in the record that she was informed of her § 72A rights in prison, we treat Kelley's motion for a speedy trial, filed on April 22, 1975, as an application under § 72 A. Commonwealth v. Boyd, 367 Mass. at ---- k, 326 N.E.2d 320 (1975). Kelley did not go to trial until April 6, 1976, nearly a year later. 7 However, as pointed out earlier, whether the indictment against Kelley must be dismissed may depend on whether the judge granted continuances for good cause beyond the six month statutory period. Commonwealth v. Ambers, --- Mass.App. at ---- l , 357 N.E.2d 323 (1976). As there were over a dozen continuances of varying lengths granted in Kelley's case, we examine them individually to see whether they were justified under the statute. Id. at ---- - ---- m , 357 N.E.2d 323.

1. The first court action subsequent to Kelley's motion for a speedy trial occurred on May 1, 1975. The stenographic record indicates that on that day an attorney from the Massachusetts Defenders Committee appeared before the court to inform the judge that the attorney assigned to the case agreed to continue it until May 9. When on May 9 Kelley's counsel did not appear, the judge continued the case until June 23, 1975, at the assistant district attorney's request. Her counsel having agreed to the first continuance and not having objected to the second, Kelley cannot now complain of those delays. Commonwealth v. Carr, --- Mass.App. at ---- - ---- n , 338 N.E.2d 844. Commonwealth v. Ambers, --- Mass.App. at ---- o , 357 N.E.2d 323.

2. On June 23, 1975, the judge set trial for September 18, 1975. Kelley's counsel objected and took an exception to the granting of the continuance. Although the record of that day's proceedings does not indicate the reason for the three month wait, at two subsequent hearings the assistant district attorney pointed out that June 23 was at the end of the court session and that September 18 was the next earliest possible trial date. Since there was no evidence of "oppressive or purposefully dilatory conduct" by the prosecution, the summer continuance should not be counted in the running of the statute. Commonwealth Ambers, --- Mass.App. at ---- P , 357 N.E.2d 323, citing Commonwealth v. Rego, 360 Mass. 385, 392, 274 N.E.2d 795 (1971).

3. O...

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