Com. v. Davis

• Decision Date: 16 April 1975
• Citation: 326 N.E.2d 17,367 Mass. 422
• Parties: COMMONWEALTH v. Joseph DAVIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 17

326 N.E.2d 17

367 Mass. 422

COMMONWEALTH v. Joseph DAVIS.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Feb. 5, 1975.

Decided April 16, 1975.

Daniel E. O'Malley, Sp. Asst. Dist. Atty. (John T. McDonough, Springfield, with him) for the Commonwealth.

Ellio C. Belluci, Springfield, for defendant.

Francis X. Bellotti, Atty. Gen., John J. Irwin, Jr. & Robert V. Greco, Asst. Attys. Gen., for the Attorney General as amicus curiae, submitted a brief.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and HENNESSEY, JJ.

REARDON, Justice.

The defendant petitioned for compensation under G.L. c. 277, § 73. A Superior Court judge after hearing his petition made findings and rulings and reported the matter here. The defendant had been arrested on December 4, 1971, and was indicted for murder on January 19, 1972. He was thereafter confined awaiting trial and during the trial, which commenced on March 12, 1973, and terminated in his acquittal on March 16, 1973. He spent 423 days in jail from the time of his indictment to his acquittal. ¹ From the date of indictment to July 19, 1972, a six-month period, 183 days elapsed. He was thus confined 240 days more than six months after having been indicted. The judge found that the delay in trial was not at his request or that of his attorney, and that there was 'no activity of any nature on the case until early 1973.' He also found that he never made a motion to be bailed under G.L. c. 277, § 72, and that his failure to move for a speedy trial amounted to an implied consent on his part to the delay in trial. The defendant's request for compensation was denied.

There was no error. This is the first time in which G.L. c. 277, § 73, has received attention. By its terms § 73 applies only 'if the delay in trial was not . . . with . . . (the defendant's) consent . . . or with the consent of his attorney of record.' We agree with the judge that such consent can be implied from inaction. '(T)he failure to demand prompt trial implies a waiver of the right thereto.' Commonwealth v. Hanley, 337 Mass. 384, 388, 149 N.E.2d 608, 611 (1958). Commonwealth v. Marsh, 354 Mass. 713, 715--718, 242 N.E.2d 545 (1968). Commonwealth v. Lauria, 359 Mass. 168, 170, 268 N.E.2d 363 (1971). More recent cases departing from the strict demand-waiver rule are concerned with the deprivation of a defendant's constitutional right by the failure to afford him a speedy trial. Commonwealth v. Horne,--- Mass. ---, --- - ---, ^a Gove, --- Mass. ---, ---, ^b 320 N.E.2d 900 (1974); Barker v. Wingo, 407 U.S. 514, 528, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). We do not believe that the right under the statute we construe, which is legislative, stands on a footing equal to the constitutional speedy trial right. Rather, the right is similar to that provided in G.L. c. 277, § 72, which assures one held in custody either a speedy trial or bail on his own recognizance 'if he requires it,' that is, if a proper demand is made. Commonwealth v. Hanley, supra, 337 Mass. at 387--388, 149 N.E.2d 608. Commonwealth v. Marsh, supra, 354 Mass. at 716, 242 N.E.2d 545. Further, it is significant here that the defendant was represented by counsel throughout the delay, who filed a flurry of pretrial...