Com. v. Domingue

• Decision Date: 04 January 1985
• Parties: COMMONWEALTH v. James E. DOMINGUE.
• Court: Appeals Court of Massachusetts

Page 799

470 N.E.2d 799

18 Mass.App.Ct. 987

COMMONWEALTH v. James E. DOMINGUE.

Appeals Court of Massachusetts Hampden.

Argued Oct. 19, 1984.

Decided Nov. 13, 1984.

Further Appellate Review Denied Jan. 4, 1985

Gary S. Pfisterer, Springfield, for defendant.

Dianne M. Dillon, Asst. Dist. Atty., for the Commonwealth.

Before GREANEY, C.J., and KASS and SMITH, JJ.

RESCRIPT.

Upon conviction by a jury in the Superior Court of assault by means of a dangerous weapon, unlawfully carrying a firearm, and malicious destruction of property, the defendant was sentenced to concurrent terms of imprisonment. (Convictions on other indictments were placed on file with the defendant's consent and, therefore, are not before us. Commonwealth v. Richards, 384 Mass. 396, 397 n. 1, 425 N.E.2d 305 [1981].) On appeal, the defendant claims (1) that his motions to dismiss the indictments for the Commonwealth's failure to bring him to trial within the period set by Mass.R.Crim.P. 36, 378 Mass. 909 (1979), should have been allowed; (2) that he was entitled to a required finding of not guilty on the carrying charge; and (3) that, on the facts, he could not have been convicted of both the assault and the malicious destruction charges.

1. The defendant's two motions to dismiss the indictments for the Commonwealth's alleged violation of the eighteen-month timetable established for this case by Mass.R.Crim.P. 36(b)(1)(B) were properly denied for the reasons set out by the two judges who passed on the motions in their respective findings and rulings. Rule 36 encompasses the prior case law which holds that a "defendant is not entitled to dismissal if he acquiesces in, is responsible for, or benefits from, the delay." Barry v. Commonwealth, 390 Mass. 285, 298 n. 17, 455 N.E.2d 437 (1983). See Commonwealth v. Look, 379 Mass. 893, 898-899 n. 2, 402 N.E.2d 470 (1980); Reporters' Notes to subsection (b)(1) of rule 36. The judges' findings indicate that several trial dates were set with the defendant's consent and that the Commonwealth was ready for trial on each of the scheduled dates. Numerous continuances were granted, however, so that the defendant could change counsel, secure financial arrangements with his new counsel, obtain discovery, and move (successfully) for the recusal of the first judge assigned to preside at the trial. These delays were all for the defendant's benefit or were acquiesced in by him. Since the periods involved in these delays far exceeded the delays which the Commonwealth has to justify, there was no violation of rule 36. Barry v. Commonwealth, supra 390 Mass. at 298-299, 455 N.E.2d 437.

We remain firm in this conclusion despite the defendant's further argument that the time periods involved in several of the continuances cannot be excluded because the judges who granted them failed to make the statement of reasons called for in subdivision (b)(2)(F) of rule 36. The argument overlooks the fact that the requirement may be waived by the defendant's acquiescence in the delay as manifested by his agreement to a continuance or his failure to object thereto. Barry v. Commonwealth, supra at 296 and 298, 455 N.E.2d 437. See also Commonwealth v. Farris, 390 Mass. 300, 306 n. 7, 455 N.E.2d 433 (1983). As previously noted, the delays which the defendant now disputes were all acquiesced in by him and were for his benefit. Hence, he is deemed to have waived the provision now relied on. In addition, the judge who denied the first motion to dismiss expressly found (after examining transcripts of the first session business granting the continuances) that the "ends of justice ... served by permitting the defendant to change counsel and obtain his discovery ... outweigh the public interests and the defendant's own interest in a speedy trial as contemplated by Rule 36." Although it would have been preferable had the several judges who allowed the continuances made the statement of reasons called for in Mass.R.Crim.P. 36(b)(2)(F), we see no reason why, at least in this instance, a judge cannot make the necessary findings when he or she considers the merits of a motion to dismiss under rule 36. This is particularly so where the issue essentially involves the review of documentary materials, such as docket entries, transcript, and clerk's notations. See Barry v. Commonwealth, supra 390 Mass. at 297-298, 455 N.E.2d 437. Contrast Commonwealth v. Hill, 375 Mass. 50, 62, 375 N.E.2d 1168 (1978). The finding quoted above is supported by the record and confirms that "it would be unconscionable to permit [this] defendant to take advantage of a situation where a substantial part of the delay in the disposition of the cases was obviously caused by him and, in addition, was for his benefit." Commonwealth v. Loftis, 361 Mass. 545, 549-550, 281 N.E.2d 258 (1972).

2. We next discuss the arguments pertaining to the sufficiency of proof on the carrying charge.

(a) The evidence, considered in light of the standard governing motions for required findings in criminal cases, see Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979); Commonwealth v. Amaral, 13 Mass.App.Ct. 238, 239, 431 N.E.2d 941 (1982), may be summarized as follows. The defendant and another man assaulted a customer at the End Zone Lounge sometime after 7:45 P.M. on December 26, 1980, and were asked to leave by the bartender. When the bartender went outside to attempt to obtain a license plate number, he observed the defendant driving a distinctive former police vehicle bearing temporary cardboard dealer's plates. There was another man in the passenger seat. The defendant "hollered" something at the bartender, who then saw a hand emerge from the driver's window and heard several shots fired. The shots missed the bartender but damaged the building. The vehicle sped off. A police officer on patrol in the area had observed an old police car with cardboard plates, registration number 2857, at Fat Daddy's Cafe between 4:30 P.M. and 6:45 P.M. Because he felt that the plates on the vehicle were improper, the officer attempted to reach the vehicle's owner to remove the vehicle from the street. In the process, he discovered that the vehicle was registered to Champion Auto Transport Company of Holyoke. According to an investigator from the Registry of Motor Vehicles, the...