Com. v. Edgerly

Decision Date09 September 1983
Citation453 N.E.2d 1211,390 Mass. 103
PartiesCOMMONWEALTH v. George EDGERLY.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Robert I. Warner, Boston, for defendant.

Sharon D. Meyers, Asst. Dist. Atty., for the Commonwealth.

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

WILKINS, Justice.

The defendant appeals from his conviction of murder in the first degree, arguing that he was deprived of his constitutional right to a speedy trial and that the judge committed errors in the course of his trial. We affirm the conviction and find no reason to grant relief under G.L. c. 278, § 33E.

The circumstances of the crime are not essential to an understanding of the appellate issues. It is sufficient to note that the defendant was convicted of the murder of Frank Smith, an area service manager for the General Motors Corporation. There was evidence that the defendant, who had been employed by Butler Chevrolet in Lowell, had participated with others in submitting fraudulent warranty claims to General Motors. General Motors had assigned Smith, the victim, to monitor warranty claims at Butler Chevrolet. Smith, who had had previous dealings with the defendant and Butler Chevrolet, arrived at Butler Chevrolet on January 30, 1974. His body was found in a tidal creek in Danvers the next morning. There was evidence that the defendant had shot him in the head and pushed his body off a pier into the water.

1. The defendant was indicted on May 15, 1974. His trial commenced on June 5, 1978. Because of this delay of slightly more than forty-eight months, the defendant argues that he was denied his right to a speedy trial guaranteed by the Sixth Amendment to the Constitution of the United States, and by art. 11 of the Declaration of Rights of the Constitution of the Commonwealth. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Commonwealth v. Gove, 366 Mass. 351, 356 n. 6, 320 N.E.2d 900 (1974). We shall consider the relevant factors: the length of the delay, the reasons for the delay, the extent of the defendant's assertion of his right to a speedy trial, and the prejudice, if any, to the defendant. Barker v. Wingo, supra 407 U.S. at 530, 92 S.Ct. at 2192. Commonwealth v. Rodriguez, 380 Mass. 643, 651-654, 405 N.E.2d 124 (1980).

Although the forty-eight months' delay in this case does not automatically require the dismissal of the indictment, it certainly requires further inquiry into the defendant's claim of a denial of his constitutional right to a prompt trial. See Commonwealth v. Look, 379 Mass. 893, 898, 402 N.E.2d 470, cert. denied, 449 U.S. 827, 101 S.Ct. 91, 66 L.Ed.2d 31 (1980). Most of the delay is attributable to interlocutory appellate consideration of an issue in this case (Commonwealth v. Edgerly, 372 Mass. 337, 361 N.E.2d 1289 [1977] ), the trial and conviction of the defendant on other charges (see Commonwealth v. Edgerly, 13 Mass.App.Ct. 562, 435 N.E.2d 641 [1982] [rape]; Commonwealth v. Edgerly, 6 Mass.App.Ct. 241, 375 N.E.2d 1 [1978] [larceny] ), and two changes in defense counsel.

The defendant points only to an aggregate of approximately twelve months of unexplained delay. These periods are from June, 1974, to January 13, 1975, two months in the summer of 1975, and the four months from February, 1978, until the commencement of the trial. The case was not a simple one, and in June, 1974, the defendant filed nineteen discovery and other pretrial motions. In the circumstances, the early period of delay does not appear to be unreasonable. With new defense counsel appointed in August, 1975, and subsequent new counsel appointed in December, 1977, we think that the latter two periods of delay are explained sufficiently to place no substantial responsibility for them on the Commonwealth.

Most of the delay is thus fully explained and the balance of the delay is not shown to be caused by the Commonwealth. The defendant asserted his right to a speedy trial with motions filed in December, 1975, and in November, 1977. However, in these circumstances, at the very least, the defendant must demonstrate significant prejudice from the delay. This he has not done. The two instances of alleged prejudice are trivial. The pathologist's failure to have any independent memory of the autopsy he performed did not prejudice the defendant. The unavailability of one Donald Tremblay, a former employee of Butler Chevrolet, required the defendant to offer in evidence Tremblay's prior recorded testimony. The reason why Tremblay was unavailable was not shown, nor was it shown when he became unavailable. In any event, Tremblay would not have been an alibi witness, nor is there any suggestion that Tremblay would have provided testimony favorable to the defendant. His prior testimony read to the jury concerned fraudulent larceny schemes at Butler Chevrolet. We see no demonstrated or likely prejudice from Tremblay's absence. See Commonwealth v. Look, 379 Mass. 893, 901-902, 402 N.E.2d 470 (1980). We therefore reject the defendant's claim that he was denied his constitutional right to a speedy trial.

2. The defendant argues that the judge should have allowed his motion for a mistrial because members of the jury saw him in custody in the courthouse and that his right to due process of law was denied when the judge failed to take steps to protect him from the prejudice that resulted from that event. At a hearing without the jury, at the commencement of proceedings on the fifteenth day of trial, defense counsel asked that the defendant be permitted to explain that jurors had seen him in custody that morning. The defendant said that court officers had him in custody by the elevator when the jury were coming in the front door, and "two or three of them took a good look at me." The judge questioned the court officer in charge of the defendant who said that, when he saw the jury, he grabbed the defendant and hugged him so that "possibly nobody could see him with the cuffs on." He was positive no juror saw the defendant with handcuffs on. Defense counsel argued that jurors seeing a court officer grabbing the defendant and hugging him was as prejudicial as jurors seeing him in handcuffs. The judge denied the defendant's motion for a mistrial and declined his request that the judge ask the jurors what they had seen. He concluded that they had not seen the handcuffs and that to ask the jurors about it would only highlight the matter.

It is doubtful that the judge abused his discretion in the way he handled this single, brief, and accidental occurrence. See Commonwealth v. MacDonald (No. 2), 368 Mass. 403, 409-410, 333 N.E.2d 194 (1975); Commonwealth v. Ferguson, 365 Mass. 1, 12-13, 309 N.E.2d 182 (1974); Dupont v. Hall, 555 F.2d 15, 17 (1st Cir.1977). The judge might well have been warranted in concluding that no "serious question of possible prejudice" was raised and thus a voir dire examination of the jurors was not needed. See Commonwealth v. Jackson, 376 Mass. 790, 800, 383 N.E.2d 835 (1978).

Here, it is apparent, in any event, that the defendant was not prejudiced by any error. The jurors came to know that the defendant was in custody at the time of the trial and was serving sentences for serious crimes. He testified on cross-examination that on July 12, 1977, he pleaded guilty in the United States District Court for the District of Massachusetts to conspiracy and mail fraud charges and was sentenced to serve one year, concurrently with a Massachusetts sentence of not less than three nor more than five years he was then serving on a 1976 conviction for larceny. He similarly testified that, on September 21, 1977, he was convicted of rape and assault with intent to commit rape and sentenced to serve not less than eighteen nor more than thirty years in State prison. In light of these disclosures, the defendant could not have been significantly prejudiced in the estimation of the jury if some members of the jury did notice him in custody of a court officer. See Commonwealth v. Brown, 364 Mass. 471, 477, 305 N.E.2d 830 (1973). There was no prejudicial error in denying the motion for a mistrial or in declining to question the jury.

3. There is no merit to the defendant's argument that he was denied his constitutional right to the effective assistance of counsel. He claims that because his trial counsel, Mr. Brower, also represented one Alfio Lupo, a potential witness, on unrelated matters, there was a conflict of interest requiring a new trial. The record does not support such a claim of constitutional violation.

In a lobby conference on the twentieth day of trial, the prosecutor brought to the judge's attention that Mr. Brower represented Lupo, who might be called as a witness. Mr. Brower stated that, when he first considered representation of the defendant, he informed the defendant that Lupo was a client. On the following day, Mr. Brower told the judge that he would not expect to call Lupo to testify but that there would be a problem in his conducting cross-examination if the Commonwealth called Lupo. Lupo, whom the defendant by his testimony implicated in the victim's death, testified on voir dire on the twenty-fourth day of trial that he had nothing to hide and would be willing to testify for the Commonwealth. However, the Commonwealth never called Lupo as a witness in rebuttal, nor did the defendant call him.

We are not concerned here with the conflict of interest inherent in defense counsel's simultaneous representation of a defendant and a significant witness for the prosecution. See Commonwealth v. Hodge, 386 Mass. 165, 169-170, 434 N.E.2d 1246 (1982); Commonwealth v. Soffen, 377 Mass. 433, 437-438, 386 N.E.2d 1030 (1979). Lupo never testified. The question is whether the defendant has shown that he was denied his constitutional right to the effective assistance of counsel because, during the time of the trial, Mr. Brower also...

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