Com. v. Gove

Decision Date18 December 1973
Citation304 N.E.2d 589,1 Mass.App.Ct. 614
PartiesCOMMONWEALTH v. Michael J. GOVE.
CourtAppeals Court of Massachusetts

Robert V. Greco, Boston, for defendant.

Stephen R. Delinsky, Asst. Dist. Atty., for the Commonwealth.

Before HALE, C.J., and ROSE, KEVILLE, GRANT, and ARMSTRONG, JJ.

GRANT, Justice.

The defendant, in proceedings had under G.L. c. 278, §§ 33A--33G, has been convicted on indictments for rape, assault and battery with a dangerous weapon and armed robbery. The errors assigned are (1) the denial of the defendant's motion to dismiss the indictment for rape, (2) the denial of his separate motion to dismiss the indictments for the assault and for armed robbery, and (3) the trial judge's response to the jury's request for a transcript of certain evidence. The following are the events and proceedings relevant and common to (1) and (2).

On August 8, 1969, a complaint issued out of a District Court charging the defendant with a rape committed earlier that day. A warrant for the arrest of the defendant which also issued on that date was, on or before April 16, 1970, lodged with authorities of the Department of Correction, in whose custody the defendant then was by reason of his conviction of one or more offences unrelated to any of those involved in the present case. 1 On the latter date the defendant was given the written notice required by the first paragraph of G.L. c. 277, § 27A (as appearing in St.1965, c. 343), 2 of the pendency of the rape complaint in the District Court. On April 27, 1970, the defendant signed and gave to the correctional authorities a written application for a prompt trial or disposition of the complaint. 3 By letter to the clerk of the District Court dated July 18, 1971, the defendant advised the clerk of his desire 'to go to court on this warrant so to have it dissmissed (sic) or have a probable cause hearing as soon as possible.' 4 The defendant was first brought into the District Court on August 5, 1971, when he was arraigned on the rape complaint, given a hearing on probable cause, and bound over to the grand jury. On September 16 1971, the grand jury returned three separate indictments charging the defendant not only with (1) the rape which was the subject of the original complaint (No. 58946) but also with (2) an assault and battery with a dangerous weapon (No. 59700) and (3) an armed robbery (No. 59701); the same date of offence and victim were named in all three indictments.

The legislative history of § 72A is notable good time earned, (e) the time of parole eligibility of such prisoner, and (f) any decisions of the board of parole relating to such prisoner. Said commissioner of correction, sheriff, master, keeper, or penal institutions commissioner shall notify the appropriate district attorney shall notify the appropriate district attorney to the court.

On September 23, 1971, the defendant a motion to dismiss the rape indictment; six days later he filed a separate motion to dismiss the other two indictments. Both motions were heard on February 7, 1972, and denied on the following day. No evidence was introduced before the motion judge as to the reason why the defendant had not been brought into the District Court until more than fifteen months after his written application for prompt trial or disposition of the rape complaint. In his written findings, which will be discussed in further detail at a later point in this opinion, the judge surmised that the delay might have been due to inadvertence or negligence in the office of the clerk of the District Court. 5 The findings contain no reference to the six months requirement of G.L. c. 277, § 72A.

The defendant was subsequently convicted by a jury on all three indictments at a trial held on March 21, 1972. 6

1. One of the grounds of the motion to dismiss the rape indictment was the failure of the District Court to comply with the requirement of G.L. c. 277, § 72A, that the defendant 'be brought into court for trial or other disposition of . . . (the) complaint' within six months of his application for prompt trial or other disposition. It has been held that when a complaint is pending in a District Court the six months requirement is satisfied by the return within that period of an indictment which charges the defendant with the same offence as that alleged in the District Court complaint. COMMONWEALTH V. STEWART, MASS., (1972), 279 N.E.2D 697.A It would appear that the six months requirement can also be satisfied by the arraignment of the defendant within that period, either in the District Court (on the original complaint) or in the Superior Court (on an indictment charging the same offence as that alleged in the complaint). Commonwealth v. Royce, 358 Mass. 597, 599, 266 N.E.2d 308 (1971). It has been held that a defendant has no right to demand the dismissal of an indictment if his case is not tried or otherwise disposed of within six months after his application for speedy trial if a substantial part of the delay was caused by him or was for his benefit. COMMONWEALTH V. LOFTIS, MASS., (1972), 281 N.E.2D 258.B No case decided under § 72A has considered a situation in which no action whatsoever has been taken, either by a court or by the prosecution. within six months following a defendant's statutory application for prompt action.

The legislative history of § 72A is notablef for the absence of any express indication of legislative purpose or intended result. 7 Although it may be supposed that the statute's purpose was to assist in the implementation of the right to speedy trial guaranteed by art. 11 of the Declaration of Rights and by the Sixth (by reason of the Fourteenth) Amendment to the Constitution of the United States, the provision is curious in the sense that the right accorded to a defendant turns almost exclusively on delay, which is but one of the several factors which must be considered in determining whether a defendant has been deprived of the constitutional right. See Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); COMMONWEALTH V. HORNE, MASS., (1973), 291 N.E.2D 629;C Commonwealth v. Steadman, Mass.App. 1973, 303 N.E.2d 356. Thus, a defendant who wishes to avail himself of the benefits of the statute need only make application for a prompt trial or other dispositing of his case; if the defendant is not brought into court (or the prosecution does not secure an indictment in a case initiated by complaint) during the six months period, there is no burden on the defendant to explain the delay or to demonstrate attandant prejudice to himself. The more curious aspect of the statute, however, is the lack of any statement of the consequence of a failure to comply with its provisions.

In the instant case we have a defendant who made due application for prompt trial or other disposition of his case, who was not brought into any court for more than fifteen months following such application (and then apparently only as the result of a further request not required of him by the statute), and who was not indicted for the offence charged in the original complaint until a somewhat later date. The statute has clearly been violated, and it falls to us to determine the consequence of such violation. We cannot accept the prosecution's suggestion that the problem may have been resolved in this case by the trial judge's sentencing the defendant to a shorter term than otherwise in an attempt to alleviate the situation. See Strunk v. United States, 412 U.S. 434, 437--440, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973). We are of opinion that the only alternative available to us, and one quite proper in the circumstances of this case, is to order that the rape indictment be dismissed.

2. The only complaint which issued out of the District Court was for rape. As we have already noted, the defendant was subsequently indicted not only for that offence but also for those of assault and battery with a dangerous weapon and armed robbery. The affidavit in support of the motion to dismiss the latter two indictments asserts (among other things) that those indictments were not sought until after it had come to the Commonwealth's attention that the defendant intended to seek a dismissal of the rape charge on the ground that the Commonwealth had failed to give him a speedy trial thereon. No evidence in support of that assertion was offered at the hearing on the motions to dismiss, and the motion judge made no finding in that respect. His findings do state that 'there was no intentional delay on the part of the prosecuting officers in the . . . (District) Court to gain some tactical advantage over the defendant or to harass him.' 8

It is obvious, however, both from a contemporaneous entry in a police journal concerning the events of August 8, 1969, and from testimony at the trial, that all three offences, although they arose from separate and distinct acts, were committed by the same individual during the course of a single intrusion into the victim's apartment and that when the police sought the 1969 complaint for rape they were fully cognizant of all the evidence on which the Commonwealth later relied to support the 1971 indictments for all three offences. For this reason the defendant contends that the indictments for the assault and for the armed robbery should also be dismissed because to permit the Commonwealth to seek and maintain those indictments in the circumstances of the present case would be to endorse circumvention of the rights accorded to the defendant by the provisions of G.L. c. 277, § 72A. A majority of the justices participating in the consideration and decision of this case are not prepared to accept the defendant's contention.

At the time § 72A was inserted in the General Laws in its original form (see St.1963, c. 486 9) there was no statutory right on the part of any person, whether at large or incarcerated, to be charged...

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11 cases
  • Com. v. Boyd
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 25 Marzo 1975
    ...under the statute has been made. The Appeals Court in Commonwealth v. Gove, --- Mass.App. --- (Mass.App.Ct.Adv.Sh. (1973) 731, 304 N.E.2d 589), concluded that dismissal in that situation is required, but since the Commonwealth did not appeal that aspect of the case we had no occasion to con......
  • Com. v. Dominico
    • United States
    • Appeals Court of Massachusetts
    • 31 Enero 1974
    ...burden of introducing, evidence to support this contention (COMMONWEALTH V. JONES, MASS. (1971) , 275 N.E.2D 143;D Commonwealth v. Gove, Mass.App.Ct.1973, 304 N.E.2d 589 n. 8 and his counsel's affidavit, sworn to the day before trial, supporting Novello's motion to dismiss, contained no sug......
  • Com. v. Campbell
    • United States
    • Appeals Court of Massachusetts
    • 10 Agosto 1977
    ...and Kelley's requests for a speedy trial differ significantly from the Commonwealth's neglectful postures in Commonwealth v. Gove, 1 Mass.App. 614, 304 N.E.2d 589 (1973); S.C. 366 Mass. 351, 320 N.E.2d 900 (1974), and Commonwealth v. Alexander, --- Mass.App. ---- w , 344 N.E.2d 221 (1976), ......
  • Com. v. Fields
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 3 Noviembre 1976
    ...which must be considered in determining whether a defendant has been deprived of the constitutional right.' Commonwealth v. Gove, 1 Mass.App. 614, 618, 304 N.E.2d 589, 591 (1973), aff'd on other grounds, --- Mass. ---, e 320 N.E.2d 900 (1974). A violation of the statutory right may be relev......
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