Com. v. Chatman

• Decision Date: 11 July 1980
• Citation: 406 N.E.2d 1037,10 Mass.App.Ct. 228
• Parties: COMMONWEALTH v. John D. CHATMAN.
• Court: Appeals Court of Massachusetts

Page 1037

406 N.E.2d 1037

10 Mass.App.Ct. 228

COMMONWEALTH v. John D. CHATMAN.

Appeals Court of Massachusetts, Suffolk.

Argued Nov. 13, 1979.

Decided July 11, 1980.

Steven J. Rappaport, Boston, for defendant.

Michael J. Traft, Asst. Dist. Atty., for the Com.

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

GOODMAN, Justice.

The defendant was convicted on June 14, 1977, of unlawfully carrying a sawed-off shotgun, armed robbery, and assault and battery by means of a dangerous weapon all arising out of an incident on December 20, 1972, at the Radio Shack on Boylston Street in Boston. Trial counsel, from the Massachusetts Defenders Committee, filed a timely claim of appeal on June 21, 1977, ¹ and transcripts of the trial and pretrial proceedings were ordered. Subsequently trial counsel was allowed to withdraw, and present counsel (appellate counsel) was appointed to prosecute the defendant's appeal on October 7, 1977. On or about January 17, 1978, copies of the transcript were delivered to the clerk and counsel; it then appeared that the transcript was incomplete. There was missing one of the stenographer's tapes from which the transcription was to be made; and consequently there were unavailable the testimony and argument on a pretrial motion to suppress identifications, the testimony of one witness and final argument on a pretrial motion to dismiss for lack of a speedy trial, the empanelling of the jury, the prosecutor's opening statement, and the testimony of the first witness at trial.

The defendant's brief in this court argued that he was entitled to a new trial because the grounds of appeal make out "a colorable need for a complete transcript." It also argued error in the judge's charge to the jury and in the denial of the defendant's motion to dismiss, in violation of G.L. c. 277, § 72A. ² The defendant's brief further asserted that "(p)resent counsel did not represent the defendant at trial and has endeavored to reconstruct the record by contacting the trial court as well as defendant's trial counsel. However, such efforts have been to no avail."

Subsequently, the Supreme Judicial Court in Commonwealth v. Harris, 376 Mass. ---, --- - --- ^a, 379 N.E.2d 1073 (1978), suggested a procedure for the reconstruction of transcripts which have become unavailable; and we stayed proceedings in this court and remanded the case to the Superior Court to provide an opportunity for reconstruction of the proceedings in that court. Accordingly, the trial judge conducted a hearing for that purpose and then dictated his notes taken during the original hearings on the motions to dismiss and to suppress and during the trial. ³ These detailed notes are the major source of the reconstruction.

The defendant thereupon filed a motion for a new trial, alleging as reason therefor that "the original trial proceedings cannot be sufficiently reconstructed" and that "the grounds of appeal . . . make out a colorable need for a complete new transcript . . . ." The court denied the motion after argument by counsel, and the defendant appealed. Both parties filed additional briefs, and this appeal was argued together with the earlier appeal.

1. Adequacy of reconstruction. The defendant points to the missing transcript of the hearing on the defendant's motion to suppress, which attacked as unnecessarily suggestive the photographic identifications of the defendant made by two of the employees of the Radio Shack present at the robbery. ⁴ As put in his brief: "The defendant does not contend that the Court's findings do not support the denial of the motion to suppress. His position is simply that a full transcript of the evidence would disclose that the findings of the court were plainly wrong." We have examined the transcript of the reconstruction hearing, the trial judge's copious notes, the remainder of the trial transcript, which includes the testimony of Palmer and Officer Smith, and the array of photographs introduced at the trial. ⁵ We are convinced that "the trial proceedings (were) . . . reconstructed sufficiently to present the defendant's" claim based on the denial of his motion to suppress. Commonwealth v. Harris, 376 Mass. at --- ^b, 379 N.E.2d at 1075. Katz v. Commonwealth, 379 Mass. ---, --- ^c, 399 N.E.2d 1055 (1979). Commonwealth v. Reid, 8 Mass.App. --- ^d, 392 N.E.2d 1219 (1979). The extent of the police officer's participation in the identifications is set out in detail in the judge's notes of the testimony of the three witnesses at the hearing on the motion to suppress (see note 4, supra ). The trial testimony of Palmer and Officer Smith, which is completely transcribed, is in no way inconsistent with the judge's notes. Nor did trial counsel make any attempt to impeach them on cross-examination by indicating any contrary testimony at the hearing on the motion to suppress. Indeed at no time did he, in cross-examining either Palmer or Officer Smith, attack the identification as suggestive (see note 5, supra ).

In light of the material in the record before us, it is hard to imagine what additional testimony the witnesses at the hearing on the motion to suppress could have given which would in any way have "disclose(d) that the findings of the court were plainly wrong." The defendant's brief does not go beyond the flat assertion. If it had any substance, trial counsel might have been expected to give it some support, for he had filed a claim of appeal and in addition to his own recollection may have been able to produce reports filed with the Massachusetts Defenders Committee. Yet appellate counsel failed to produce the trial counsel at the reconstruction hearing and gave no explanation for that failure. Clearly "the posture of the case was such that the defendant would be naturally expected to call" trial counsel. Commonwealth v. Niziolek, --- Mass. ---, --- ^e, 404 N.E.2d 643 (1980). We are therefore not impressed with the fact emphasized by appellate counsel that he himself entered the case after trial.

Nor are we impressed by his complaint that he "lacks the benefit of (the) exceptions at trial." Here again we find significant the absence of trial counsel at the reconstruction hearing. ⁶

The defendant further contends quoting Charpentier v. Commonwealth, 376 Mass. ---, --- - --- ^f, 379 N.E.2d 1067 (1978) that he is deprived of the opportunity of examining a complete transcript for "unnoticed errors (which) may have been committed at trial causing a 'substantial risk of a miscarriage of justice.' Commonwealth v. Freeman, 352 Mass. 556, 564 (227 N.E.2d 3) (1967)." Here, however, that contention seems to us to be foreclosed by the Harris case, read together with the Charpentier case. In the Charpentier case the court referred to that consideration in support of the requirement that an indigent criminal defendant be given a complete transcript free of charge, but pointed out that (376 Mass. at --- n.6 ^g, 379 N.E.2d at 1071 n.6) "(w)here the stenographic record is unavailable through no fault of the parties, the principles of Commonwealth v. Harris, . . . apply." ⁷ Under those circumstances applicable to rich as well as to poor the Harris case (376 Mass. at --- ^h, 379 N.E.2d at 1075) holds that it is constitutionally permissible to require that an appeal be presented on a record which "can ( ) be reconstructed sufficiently to present the defendant's claims." Implicit in this formulation at least where trial counsel is available is the requirement that the defendant come forward with articulable claims with reference to which the reconstruction can be judged. In this case we are convinced that there are no such claims for which the reconstruction is insufficient. Katz v. Commonwealth, 379 Mass. at --- ⁱ, 399 N.E.2d 1055.

2. Speedy trial; G.L. c. 277, § 72A. The complaints relating to the incident at the Radio Shack on December 20, 1972, were issued on December 26, 1972, together with two other complaints stemming from an unrelated incident on December 21, 1972. The defendant could not be found, and the complaint warrants were returned without service on February 20, 1973. The defendant testified that he had been arrested in Rhode Island (apparently for reasons unrelated to the 1972 incidents) on January 5, 1973, and was imprisoned there until early August, 1974, when he was returned to Boston. On August 9, 1974, the defendant appeared at the Boston Municipal Court but was not arraigned on any of the December, 1972, complaints. At that time all five complaints were endorsed: "Upon representation, defendant indicted in Superior Court, no further proceedings in this court." The defendant was then returned to the Massachusetts Correctional Institution at Concord (Concord) for a parole violation unconnected with the December, 1972, incidents. The endorsements on the complaints for the December 20 offenses were made in error arising from the indictment at that time for one of the December 21 offenses. On August 14, 1974, three new complaints were issued based on the December 20 incident. Officer Smith testified that the new complaints were lodged against the defendant in Concord. However, for some unexplained reason the defendant was released from Concord on April 1, 1975, no action having been taken on the outstanding warrants. These were eventually returned without service in June of 1977.

Upon learning in February of 1976 that the defendant had been arrested in Virginia, the Commonwealth obtained the present indictments based on the December 20 incident. But by the time the indictments were returned on February 4, 1976, the defendant had been released by the Virginia authorities. ⁸

In March of 1977, the defendant was arrested in Maine, was returned to Massachusetts, and was again taken to Concord. On June 8, 1977, he was arraigned on the present indictments and the trial began.

The defendant filed a motion to dismiss and "assign(ed) as grounds therefor, that he was denied his Constitutional right to a speedy...