Com. v. Fasano

• Decision Date: 09 May 1978
• Parties: COMMONWEALTH v. Thomas M. FASANO.
• Court: Appeals Court of Massachusetts

Page 361

375 N.E.2d 361

6 Mass.App.Ct. 325

COMMONWEALTH v. Thomas M. FASANO.

Appeals Court of Massachusetts,Middlesex.

Argued April 10, 1978.

Decided May 9, 1978.

Dyanne Klein Polatin, Brookline, for defendant.

Stephen J. Kiely, Asst. Dist. Atty., for the Commonwealth.

Before KEVILLE, GRANT and BROWN, JJ.

GRANT, Justice.

The defendant has appealed from his convictions on a mixed bag of indictments for forgery and uttering, larceny, attempted larceny and possession of an altered license to operate motor vehicles which were returned by the grand jury which sat in Middlesex County in October and November, 1974. The only questions argued on appeal arise out of the denial of the defendant's motion to dismiss the indictments under arts. IV(e ) and V(c ) of the Interstate Agreement on Detainers (Agreement), to which both the Commonwealth (St.1965, c. 892, § 1) and the United States (Pub.L. No. 91-538, 84 Stat. 1397 (1970)) are parties. The following is a summary of the material facts which can be gleaned from the docket entries, a rather disjointed record, and certain undisputed recitals appearing in the briefs of the parties.

The defendant was duly arraigned on all the indictments. Following various continuances which are of no present moment, the defendant was defaulted on each indictment on November 10, 1975. On February 24, 1976, ¹ the defendant was sentenced by the United States District Court for the District of Massachusetts to serve a term of two years in prison for an unrelated firearms violation. The first fifteen days of that sentence were served in the Suffolk County (Charles Street) jail, after which the defendant was transferred to the Federal Correctional Institution in Danbury, Connecticut.

On March 19 the district attorney for the Northern District (Middlesex County) forwarded to the warden of Danbury a copy of the capias which had issued out of the Superior Court sitting in Middlesex County by reason of the defendant's defaults, as well as a list (by docket numbers) of all the aforementioned Middlesex indictments. It is agreed that this communication constituted a "detainer" within the meaning of the Agreement and that it was duly received in Danbury. On April 13 the defendant executed a request under art. III(a ) of the Agreement for final disposition of all the Middlesex indictments, and on the same day the warden of Danbury transmitted that request and the certificate of status contemplated by art. III(c ) to the district attorney in Middlesex County, with copies of both documents to the clerk of the courts there. The papers were received in both offices on April 20.

On April 27 or 28 the defendant was brought from Danbury to Boston in connection with another unrelated indictment which was then pending against him in Suffolk County, and was lodged in the Charles Street jail. His presence in Boston appears to have resulted from the service on the United States Marshal at Boston of a writ of habeas corpus ad prosequendum which had issued out of the Superior Court sitting in Suffolk County.

On May 17 the district attorney in Middlesex County forwarded to the warden of Danbury the papers necessary to secure the latter's authorization to release the defendant into the custody of the Massachusetts State police, together with advice that the Middlesex indictments were scheduled for trial on May 21. On May 19 the district attorney in Middlesex was advised by Danbury (apparently by telephone) that the defendant was unavailable by reason of his having been taken to Boston in connection with the Suffolk indictment. It is not disputed that the district attorney in Middlesex had not previously been aware of the Suffolk proceedings; nor is it disputed that he made no effort to secure the defendant's presence in Middlesex during the course of the Suffolk proceedings.

On May 27 the defendant was moved to the Essex County house of correction in Lawrence, where he remained until he was taken back to Danbury on July 15 following the conclusion of the proceedings in Suffolk. ² On July 23 Danbury released the defendant into the custody of the State police, who lodged him in the Middlesex County house of correction in Billerica. This transfer was for the purpose of honoring the aforementioned request of the defendant for disposition of the Middlesex indictments. The defendant was brought into the Superior Court sitting in Middlesex County at Cambridge on July 26, at which time all the defaults were removed. Following various continuances which will be discussed in part 2 of this opinion, on November 2 the defendant filed a motion to dismiss all the indictments under arts. IV(e ) and V(c ) of the Agreement. The motion was heard and denied on the same day. Trial by jury commenced on November 8, and the defendant was convicted on all the indictments on November 10. The defendant served the balance of his Federal sentence at Billerica and was then transferred to the Massachusetts Correctional Institution at Norfolk as a State prisoner to serve the sentences imposed in the present case.

1. Article IV of the Agreement contains provisions by which a prisoner may be brought into a receiving State at the request of a prosecutor therein who wants the prisoner for trial on a pending indictment, information or complaint and who has previously filed a detainer against the prisoner in the sending State. That article concludes: "(e). If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment . . . , such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice" (emphasis supplied).

The first ground of the motion to dismiss was that the Superior Court was required to dismiss all the Middlesex indictments because the defendant had been brought into the Commonwealth on the Suffolk indictment and then returned to Danbury without any disposition having first been made of any of the Middlesex indictments. There is no evidence that the district attorney for the Suffolk District had ever filed a formal detainer with the warden of Danbury prior to securing the issuance of the writ of habeas corpus ad prosequendum out of the Superior Court sitting in Suffolk County. The Commonwealth points to the portion of art. IV(e ) which has been italicized above, points to the procedure by which a prosecutor could secure the presence of a Federal prisoner here prior to the enactment of the Agreement by our Legislature (see G.L. c. 248, § 24; Commonwealth v. Domanski, 332 Mass. 66, 71-73 123 N.E.2d 368 (1954); Commonwealth v. McGrath, 348 Mass. 748, 750-751, 205 N.E.2d 710 (1965); Commonwealth v. Swenor, 3 Mass.App. ---, --- ^a, 323 N.E.2d 742 (1975)), argues that the Suffolk writ was issued pursuant to the prior procedure, argues that that procedure has not been supplanted by the Agreement, and concludes that art. IV(e ) of the Agreement has no application to the circumstances of the present case. We add on that side of the scale our own observation that the warden of Danbury, who appears to have been meticulous about the paper work required in connection with the defendant's request under art. III, appears not to have regarded the Suffolk writ as falling within the parameters of art. IV because he did not notify the district attorney in Middlesex County in the manner required by the second sentence of art. IV(b ) that the defendant was being sent to Suffolk County. See State v. Masselli, 43 N.J. 1, 9-10, 11, 202 A.2d 415 (1964).

The defendant points to a split of authority in the Federal courts as to whether a writ of habeas corpus ad prosequendum issued by a United States District Court for a State prisoner under the provisions of 28 U.S.C. § 2241(c) (5) (1970) constitutes a "detainer" within the meaning of art. IV(a ) of the Agreement and urges us to follow those courts which have either assumed or reached a reasoned conclusion that such a writ is a "detainer," a request for temporary custody of the prisoner within the contemplation of art. IV(a ), or both. See United States v. Ricketson, 498 F.2d 367, 373 (7th Cir.), cert. denied, 419 U.S. 965, 95 S.Ct. 227, 42 L.Ed.2d 180 (1974); United States ex rel. Esola v. Groomes, 520 F.2d 830, 836-839 (3d Cir. 1975); United States v. Mauro, 544 F.2d 588, 591-593, 594 (2d Cir. 1976), cert. granted, 434 U.S. 816, 98 S.Ct. 53, 54 L.Ed.2d 71 (1977); United States v. Ford, 550 F.2d 732, 736- 742 (2d Cir.), cert. granted, 434 U.S. 816, 98 S.Ct. 53, 54 L.Ed.2d 72, (1977); United States v. Sorrell, 562, F.2d 227, 229-232 (3d Cir. 1977); United States v. Thompson, 562 F.2d 232, 233-235 (3d Cir. 1977); United States v. Evans, 423 F.Supp. 528, 531 (S.D.N.Y.1976), aff'd without opinion, 556 F.2d 561 (2d Cir. 1977). Contrast United States v. Scallion, 548 F.2d 1168, 1171-1173 (5th Cir. 1977); United States v. Kenaan, 557 F.2d 912 (1st Cir. 1977); Ridgeway v. United States, 558 F.2d 357, 358-362 (6th Cir. 1977); United States v. Eaddy, 563 F.2d 252, 255 (6th Cir. 1977); Huff v. United States, 437 F.Supp. 564, 567-569 (W.D.Mo.1977). See also United States v. Simmons, 437 F.Supp. 621, 622-623 (W.D.Pa.1977).

Most of the Federal cases which have reached the result contended for by the defendant have done so on the basis of particular statements found in the legislative documents which were generated in Congress during the course of its consideration of the Agreement some five years after it had already become law here. ³ We do not understand any of those cases to find anything in the language of the Agreement itself which expresses an intention that its signatories must renounce the use of the writ of habeas corpus ad prosequendum as a means of securing the presence of a prisoner from another State which is willing to release him. All the cases we have found which have considered the present question have...