Com. v. Conefrey

• Decision Date: 06 May 1991
• Citation: 570 N.E.2d 1384,410 Mass. 1
• Parties: COMMONWEALTH v. George CONEFREY, Sr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1384

570 N.E.2d 1384

410 Mass. 1

COMMONWEALTH v. George CONEFREY, Sr.

Supreme Judicial Court of Massachusetts,

Barnstable.

Argued Jan. 10, 1991.

Decided May 6, 1991.

Nona E. Walker, Committee for Public Counsel Services, Scituate, for defendant.

Julia K. Vermynck, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, NOLAN, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

A jury in the Superior Court found the defendant, George Conefrey, Sr., guilty of indecent assault and battery on his daughter, a child under fourteen. See G.L. c. 265, § 13B (1988 ed.). We granted the defendant's application for direct appellate review. We reject the argument that his motions to dismiss should have been allowed because he was denied the right to a speedy trial under Mass.R.Crim.P. 36, 378 Mass. 909 (1979), or because an unauthorized person was present with the grand jury. We conclude, however, that the defendant is entitled to a new trial because his constitutional right to represent himself was violated. We also comment briefly on an issue that may arise at retrial concerning the seating arrangement for the complainant when she testifies.

1. Rule 36. The alleged incident of sexual abuse took place in 1986, when the defendant's daughter was eight years old. The defendant was first indicted on July 16, 1987, for indecent assault and battery on a child under fourteen. He was arraigned on this indictment on August 4, 1987. The Commonwealth decided that it would not pursue this indictment, and a second indictment for the same offense was returned on June 7, 1988. The defendant was arraigned on the second indictment on June 22, 1988. The defendant moved to dismiss the second indictment, asserting that inaccurate evidence had been provided to the grand jury that had voted to return it. On November 21, 1988, an assistant district attorney entered a statement of nolle prosequi which stated that the two pending indictments would not be prosecuted because inaccurate testimony had been presented to the grand juries. ¹ On that same day, a third indictment was returned against the defendant for the same offense. The defendant was arraigned on this indictment on November 30, 1988.

On June 7, 1989, the defendant moved to dismiss the third indictment for the alleged violation of his right to be tried within a twelve-month time period, as provided for by Mass.R.Crim.P. 36(b)(1)(C). The judge who presided at the trial denied the motion. The judge appears to have reasoned that the applicable time period under rule 36 was measured from the date of the return of the third indictment. Because less than seven months had elapsed since that date, the judge concluded that the defendant's rights under rule 36 had not been violated. The trial commenced on June 16, 1989.

As both the defendant and the Commonwealth now agree, the applicable twelve-month period under rule 36 began to run from the date the defendant was arraigned on the first indictment, see Mass.R.Crim.P. 36(b)(1)(C), and Mass.R.Crim.P. 2(b)(15), 378 Mass. 844, 846 (1979); Commonwealth v. Mattos, 404 Mass. 672, 674, 536 N.E.2d 1072 (1989), and not, as the judge seemed to believe, from the date of return of the third and final indictment. See Commonwealth v. Gove, 366 Mass. 351, 358 n. 7, 359, 320 N.E.2d 900 (1974). All periods of time during which the same charges were pending against the defendant, regardless of the indictment to which they apply, are to be included for the purpose of computing the application of rule 36. There is to be excluded from the computation any period during which no charge was pending, see Mass.R.Crim.P. 36(b)(2)(D); Reporters' Notes to Mass.R Crim.P. 36, Mass.Ann.Laws, Rules of Criminal Procedure at 530 (1979), and any other period which rule 36(b)(2) permits to be excluded.

The period between the date of the defendant's arraignment on the first indictment, August 4, 1987, and the date of trial, June 16, 1989, totals 682 days. This exceeds the twelve-month requirement by 317 days. The defendant concedes that 281 days are properly excludable under rule 36, leaving the Commonwealth, according to his calculations, with thirty-six days that he asserts cannot be justified.

The defendant, based on our examination of the court records and dockets, see Barry v. Commonwealth, 390 Mass. 285, 289, 455 N.E.2d 437 (1983), does not fully account in his calculations for at least one significant period of time which constitutes an exclusion. On April 21, 1988, the defendant agreed in writing to a waiver of his right to a speedy trial on the first indictment. The waiver requested that the case be continued until October, 1988, almost six months later, because of court congestion. The waiver was accepted by a judge and docketed. During this almost six-month period, the defendant made no objection to any delay caused by the continuance. Rule 36(b)(2)(F) provides that any period of delay resulting from a continuance granted by the judge shall be excluded in computing the time within which trial must commence. In his computation, the defendant excludes the sixty-three day period of the continuance from April 21, 1988, when he signed the waiver, to June 22, 1988, the date on which he was arraigned on the second indictment. The defendant apparently takes the position that, for the purposes of rule 36, the continuance applied exclusively to the first indictment and lasted only until the return day of the second indictment.

The entire period between April 21, 1988, and October, 1988, is to be excluded. As a general proposition, court congestion by itself will not constitute an adequate justification for the denial of the right to a speedy trial. See Commonwealth v. Beckett, 373 Mass. 329, 332-333, 366 N.E.2d 1252 (1977). However, reasons of court congestion may be adequate to excuse delay when, as is the case here, a defendant has agreed to a continuance based on congestion, rendering him at least partially responsible for the delay, see Commonwealth v. Dias, 405 Mass. 131, 138-139, 539 N.E.2d 59 (1989); Commonwealth v. Campbell, 401 Mass. 698, 702, 519 N.E.2d 269 (1988); Commonwealth v. Farris, 390 Mass. 300, 305, 455 N.E.2d 433 (1983); Barry v. Commonwealth, supra, 390 Mass. at 298, 455 N.E.2d 437; and the judge who examined the defendant's waiver has implicitly determined that the continuance is in the best interests of justice under rule 36(b)(2)(F).

It is not significant to the resolution of this issue that one indictment replaced another during the six-month period. The defendant made no objection during that time and did not request any clarification regarding the length of the continuance after the second indictment was returned. For purposes of analysis under rule 36, one charge was continuously pending against the defendant from his arraignment on August 4, 1987, until the date of trial, and all properly excludable periods of time are to be deducted from the time limit required for trial. The six-month written waiver executed by the defendant more than covers the thirty-six day period in issue. The defendant was not entitled to allowance of his motion to dismiss based on rule 36.

2. Claim of an unauthorized person in the grand jury proceedings. Relying principally upon Commonwealth v. Pezzano, 387 Mass. 69, 438 N.E.2d 841 (1982), the defendant argues that the third indictment should have been dismissed because there was an unauthorized person present in the grand jury room during the presentation of evidence to the grand jury. During the proceedings, before the complainant entered the grand jury room to testify, the prosecutor handling the case informed the grand jury that "the witness will be brought into the courtroom ... in the company of Patricia Blair, who is a victim witness assistance [sic ] with the District Attorney's office. She will be seated behind the testifying witness and out of her sight."

In the Pezzano case, we held that the presence of an unauthorized person during grand jury proceedings would cause the resulting indictment to be voided as a violation of art. 12 of the Massachusetts Declaration of Rights. ² See Commonwealth v. Pezzano, supra at 70, 72-73, 438 N.E.2d 841. We indicated that the adoption of Mass.R.Crim.P. 5(c), 378 Mass. 850, 851 (1979), permitting the presence of "such other persons who are necessary or convenient to the presentation of the evidence" to the grand jury, did not diminish our long-standing State constitutional protections in this area. We have noted that one of the reasons for keeping grand jury proceedings closed to third persons "is to shield [the grand jury] from any outside influences having the potential to 'distort their investigatory or accusatory functions.' " Commonwealth v. Pezzano, supra at 73, 438 N.E.2d 841, quoting Opinion of the Justices, 373 Mass. 915, 918, 371 N.E.2d 422 (1977). In particular, our decisions have expressed concern that the presence of certain persons might cause the grand jury to be "overawed or moved to act other than as the members deemed right." Commonwealth v. Favulli, 352 Mass. 95, 107, 224 N.E.2d 422 (1967). See also Commonwealth v. Pezzano, supra 387 Mass. at 73, 438 N.E.2d 841; Opinion of the Justices, 373 Mass. at 919, 371 N.E.2d 422; Opinion of the Justices, 232 Mass. 601, 603, 123 N.E. 100 (1919); Commonwealth v. Harris, 231 Mass. 584, 586, 121 N.E. 409 (1919).

This concern is especially relevant when police witnesses are involved. We have held that police witnesses may not be present with the grand jury during the examination of other witnesses, see In re Lebowitch, 235 Mass. 357, 362, 126 N.E. 831 (1920); Opinion of the Justices, 232 Mass. at 604, 123 N.E. 100; Commonwealth v. Harris, supra 231 Mass. at 585-587, 121 N.E. 409, even if they are present to provide security. See Commonwealth v. Pezzano, supra 387 Mass. at 74, 438 N.E.2d 841. On the other hand, when the "other persons" present with the grand jury are assistants to the prosecutor, we...