Com. v. Green
| Decision Date | 28 February 1968 |
| Citation | 353 Mass. 687,234 N.E.2d 534 |
| Parties | COMMONWEALTH v. Theodore GREEN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Ronald J. Chisholm, Boston, for defendant.
Manuel Morse, Asst. Dist. Atty., for the Commonwealth.
Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER and KIRK, JJ.
On May 16, 1952, the defendant, with others, was indicted by a Worcester County grand jury on three charges: assault with intent to rob, breaking and entering, and carrying a dangerous weapon. Verdicts of guilty were returned on all the indictments on September 9, 1952. The defendant appealed. While his appeal was pending, he escaped from the State prison at Charlestown on May 4, 1953. 1 On appeal the judgments were reversed and the verdicts set aside as to the defendant. Commonwealth v. Domanski, 332 Mass. 66, 123 N.E.2d 368 (December 21, 1954). On May 16, 1955, upon the defendant's motion, a judge of the Superior Court, after hearing, revoked the defendant's sentences, and assigned the cases for trial on October 3, 1955. At the conclusion of that hearing the defendant was taken into custody by the United States Marshal for the District of twenty-five years imposed on October prison in Charlestown until June 2, 1955, when he was transferred to the United States penitentiary at Alcatraz, California. There he was imprisoned on sentences totaling twenty--five years imposed on October 27, 1952, by the United States District Court, District of Massachusetts.
On October 3, 1955, the defendant's lawyer withdrew his appearance, and three days later the district attorney of Worcester County notified the United States Attorney that he would not attempt to try the defendant at that time.
From January, 1966, till April, 1966, the defendant was a federal prisoner at the Massachusetts Correctional Institution, Walpole. In January, 1966, he was convicted in the Superior Court for the May 4, 1953, escape, and sentenced to a term of four to six years, to be served after his Federal sentence. In April, 1966, he was 'returned' 2 to the Federal penitentiary at Leavenworth. In November, 1966, the Federal authorities paroled him to the Commonwealth to serve the sentence for the escape.
The defendant filed a number of motions in the Superior Court while he was a Federal prisoner outside the Commonwealth. On December 12, 1955, he filed a motion to dismiss the indictments. This was denied on October 26, 1956. On July 22, 1958, he filed a of the indictments. This was heard on January 6, 1959, and denied without prejudice. On June 24, 1960, he filed another motion for speedy trial which was denied without prejudice on June 30, 1960.
On June 22, 1967, while in the Commonwealth, he filed a motion to dismiss the indictments 'on the ground that he was denied his constitutional right to a speedy trial.'
A judge of the Superior Court, reciting that the motion of June 22, 1967, 'raises questions of law which are both doubtful and important and require a decision' by this court, has reported the case. G.L. c. 278, § 30A. Possible questions suggested in the report are whether the indictments should be dismissed, or the defendant brought to trial.
The defendant is guaranteed the right to a speedy trial by art. 11 of the Declaration of Rights. Bishop v. Commonwealth, 352 Mass. 258, 260, 225 N.E.2d 345. See Commonwealth v. Hanley, 337 Mass. 384, 387, 149 N.E.2d 608, 610, 66 A.L.R.2d 222, where the third reason given was That the defendant was in Federal custody does not affect this right. In Commonwealth v. McGrath, 348 Mass. 748, 752, 205 N.E.2d 710, we said:
We are of opinion that upon consideration of the reported motion of June 22, 1967, the indictments must be dismissed. So far as the record shows, between October 6, 1955, when an intention to try the defendant at that time was disclaimed, and June 22, 1967, no effort was made by the Commonwealth to bring the defendant to trial. On the other hand, the defendant filed motions for speedy trial which were denied. The initiative has been wholly on his part. There is no necessity at this time to pass on the correctness of those denials.
The Commonwealth makes no convincing contention against dismissal. It is no longer material that a date was once set for October 3, 1955. If it is argued that by reason of his escape from Charlestown ...
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