Com. v. Gove

Citation320 N.E.2d 900,366 Mass. 351
PartiesCOMMONWEALTH v. Michael J. GOVE.
Decision Date13 November 1974
CourtUnited States State Supreme Judicial Court of Massachusetts

Francis J. Stolarz, Brookline, for defendant.

Roger A. Emanuelson, Asst. Dist. Atty., for the Commonwealth.


TAURO, Chief Justice.

The defendant appeals under G.L. c. 278, §§ 33A--33G, following convictions on indictments for rape, assault and battery by means of a dangerous weapon, and armed robbery (later reduced to larceny). The Appeals Court in dismissing the rape indictment held that the defendant was not afforded a trial or other disposition of the rape charge within six months of his application for a speedy trial required by G.L. c. 277, § 72A (as appearing in St.1965, c. 343), but refused to reverse the two remaining convictions. COMMONWEALTH V. GOVE, --- MASS. ---, 304 N.E.2D 589 (1973)A. The case is here for further review on application of the defendant. 1

The defendant contends (1) that all of the indictments flow from the same incident and therefore must meet the same six months' standard under G.L. c. 277, § 72A, and (2) that, in any event, the Commonwealth has denied him his right to a speedy trial on these indictments, guaranteed by art. 11 of the Declaration of Rights of the Massachusetts Constitution and the Fourteenth Amendment to the United States Constitution. We disagree.

The incident from which all charges stem occurred in the early morning of August 8, 1969. A man broke into the apartment of the victim and removed money and a ring from her jewel box. At the time of the theft, she was asleep on the living room couch. The man awakened her, menaced her with a knife, and slapped her. He pushed her into the bedroom, and, as he did so, cut her neck slightly with his knife. In the bedroom, he attempted to have intercourse with her, but failed. After this unsuccessful attempt, she persuaded him to return her ring.

The two then emerged from the bedroom and sat down in the kitchen. The man delivered a long monologue about himself and his life. Subsequently, having finished his discourse, he ordered the victim to return to the bedroom and raped her.

Later on August 8, following a photographic identification by the victim, the Municipal Court of the Dorchester District issued a complaint which charged the defendant with the rape of the victim. No other charges were entered at that time in connection with the incident.

On April 16, 1970, while the defendant was confined to the Massachusetts Correctional Institution at Concord on an unrelated charge, he received written notification, as prescribed by G.L. c. 277, § 72A, of the pendency of the rape complaint in the District Court. Eleven days later, he filed a written application for 'a prompt trial or disposition' of the rape charge. Over fourteen months later, on July 18, 1971, the defendant, by letter to the clerk of the District Court, restated his desire to go to court for a probable cause hearing or dismissal of the rape complaint.

This second communication resulted in relatively swift action by the Commonwealth. On August 15, the defendant was brought before the District Court. He was arraigned on the rape complaint and was bound over to the grand jury. On September 16, 1971, the grand jury returned indictments for rape, assault and battery by means of a dangerous weapon, and armed robbery. All indictments were related to the events of August 8, 1969. The defendant filed separate motions to dismiss the rape indictment (September 23, 1971) and the assault and battery and armed robbery indictments (September 29, 1971) for failure to grant him a speedy trial. After a Superior Court hearing at which the defendant testified, the motions were denied. The judge found, without specific reference to either the constitutional provisions or G.L. c. 277, § 72A, that the defendant had not been 'actually prejudiced' by the delays in hearing his case.

On March 21, 1972, a jury found the defendant guilty on each of the three indictments.

On appeal the Appeals Court dismissed the rape indictment, holding that the more than fifteen months' interim between the defendant's application for speedy trial and his arraignment in the District Court violated G.L. c. 277, § 72A. The Appeals Court declined to dismiss the remaining indictments on the ground that no complaint, indictment or information had been 'pending' at the time of the defendant's application. The Appeals Court ruled also that the defendant's constitutional claims were without merit.


The statute on which the defendant relies, G.L. c. 277, § 72A, provides that penal authorities, upon learning of an 'untried indictment, information or complaint . . . pending in any court in the commonwealth' against a prisoner in their custody, must advise the prisoner in writing of these untried charges. The prisoner may then make application in writing 'for prompt trial or other disposition' of these charges. Under the statute, trial or other disposition 'shall' occur within six months of receipt of the application by the court.

The defendant argues that the six months' period, which began with his April 27, 1970, application for prompt trial of the rape charge, must also define the time period available to the Commonwealth for adjudication of other charges flowing from the same incident. He contends that the assault and battery and robbery charges, though not brought until the September indictments were returned, must be measured against the August, 1969, to August, 1971, period relevant to the rape complaint. This, in the defendant's view, was the manifest legislative intent irrespective of the recurrent use of the word 'pending.' We cannot agree.

Elementary rules of statutory construction require that each statute be interpreted as enacted. Davey Bros. Inc. v. Stop & Shop, Inc., 351 Mass. 59, 63, 217 N.E.2d 751 (1966). No portion of the statutory language may be deemed superfluous. Commonwealth v. Woods Hole, Martha's Vineyard & Nantucket S. S. Authy., 352 Mass. 617, 618, 227 N.E.2d 357 (1967). When the statutory language is plain, the words must receive their 'usual and natural meaning.' Commonwealth v. Thomas, 359 Mass. 386, 387, 269 N.E.2d 277 (1971); Tilton v. Haverhill, 311 Mass. 572, 577, 42 N.E.2d 588 (1942). G.L. c. 4, § 6, Third. Statutory language should constitute the principal source of insight into legislative purpose. Commissioner of Corps. & Taxn. v. Chilton Club, 318 Mass. 285, 288, 61 N.E.2d 335 (1945). The defendant's construction of G.L. c. 277, § 72A, if accepted, would require that we overlook plain statutory language and deviate from ordinary word meanings. The statutory language applies to an 'untried indictment, information or complaint' which is 'pending in any court in the commonwealth' 2 (emphasis supplied). It does not apply to indictments which may emerge from further consideration of the evidence. The use of the word 'pending' necessarily implies that the complaint or indictment must already exist and be awaiting action in a court. It must be a concrete charge, not a mere possibility. This view is reinforced with other specific statutory language: the correction officials must inform a prisoner of the existence of an indictment, information or complaint and of 'the court in which it is pending.' Even if one were to ignore the word 'pending,' as urged by the defendant, it is plain that the legislation requires the charge to have status before a court. 3 The charge cannot be a prosecutorial intention. Finally, after application for speedy trial, the court must then dispose of 'such indictment' (emphasis supplied). Again, the reference is to a particular prior indictment. 4

Thus, the statute should not be seen as a broad-gauge legislative attempt to help solve the problems underlying the concept of 'speedy trial.' The statute has a more restricted application. It 'establishes a priority for trials of defendants who are already in custody.' Commonwealth v. Stewart, --- Mass. ---, ---, 279 N.E.2d 697, 698 (1972); b Commonwealth v. Lauria, 359 Mass. 168, 171, 268 N.E.2d 363 (1971). It furnishes a ready method for inmates to accelerate action on possible further impediments to their freedom.

We believe the statutory language bespeaks a clear legislative intention to expedite prosecution of charges already brought. The statute, in effect, is a 'warrant removal' or detainer removal statute. We, therefore, reject the implication in the defendant's argument that a single indictment followed by an application for a speedy trial compels prosecutors to try or dispose of all possible charges from a single fact pattern. 5 The application for speedy trial of the rape complaint could not affect the subsequent indictments for armed robbery and assault and battery. We do not decide any question as to the effect of the statute on successive indictments, informations or complaints relating to the same offense. See Commonwealth v. Royce, 358 Mass. 597, 599, 266 N.E.2d 308 (1971); COMMONWEALTH V. STEWART, ---, MASS. ---, 279 N.E.2D 697 (1972)C. See also fns. 7, 8, infra.


The Sixth Amendment to the Constitution of the United States provides that '(i)n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.' 6 The rights secured by the speedy trial clause are fundamental to a system of merciful and even-handed justice. Through incorporation in the Fourteenth Amendment, the speedy trial clause guarantees expeditious disposition of charges in prosecutions under State laws. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); Commonwealth v. Lauria, 359 Mass. 168, 268 N.E.2d 363 (1971); COMMONWEALTH V. HORNE, --- MASS. ---, 291 N.E.2D 629 (1973)D. A prisoner, incarcerated for another offense, does not forfeit this right solely because of his incarceration. He, too, has a vital interest...

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