Com. v. Hanley

Decision Date16 April 1958
Citation149 N.E.2d 608,337 Mass. 384
Parties, 66 A.L.R.2d 222 COMMONWEALTH v. John G. HANLEY.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Francis B. Kenney, Jamaica Plain, and Joseph J. Balliro, Boston, for defendants.

A. Andre Gelinas, Dist. Atty., Fitchburg, and Charles M. Dewey, Asst. Dist. Atty., Worcester, for Commonwealth.

Before WILKINS, C. J., and RONAN, SPALDING, WHITTEMORE and CUTTER, JJ.

WHITTEMORE, Justice.

This is an appeal, under G.L. (Ter.Ed.) c. 278, §§ 33A-33G, as amended.

The defendant was indicted in Worcester County on August 20, 1952, on the charge of being an accessory before the fact to an armed assault with intent to rob on November 25, 1951. The defendant was arrested in Rhode Island in May, 1953, and was held under indictments from Bristol and Worcester counties. He was promptly tried in Bristol County under the indictment there, for an unrelated offence, and was found guilty and sentenced to the State prison at Charlestown. He was committed under that sentence on June 29, 1953, and has been in Massachusetts custody since that time.

The defendant was arraigned in Worcester County, under the indictment of August 20, 1952, on May 16, 1955. He then moved to quash the indictment on the ground of delay in bringing him to trial. This motion was denied on June 8, 1955, after hearing. No exception was saved. On October 4, 1955, the defendant moved to quash the indictment on the ground that trial would deprive him of his rights under the Declaration of Rights of the Massachusetts Constitution and under the Fourteenth Amendment to the Constitution of the United States. The argument disclosed that the ground of the motion was delay in trial. The motion was denied on October 17, 1955, and the defendant's exception was saved. On October 17, 1955, the defendant moved for a postponement because of ill health. The court denied the motion and saved the defendant's exception. Another exception relates to the admission of evidence that the defendant was confined in the State prison. Other exceptions relate to the conduct of the trial which began on October 17, 1955, and resulted in a verdict of guilty on October 21, 1955. Other facts are stated in the following paragraphs.

1. There was no error in the denial of the October motion to quash the indictment.

The defendant by his own choice was tried without an attorney acting for him. He rejected in May, 1955, and again in September, 1955, the opportunity of having the court appoint counsel for him. To several questions about the matter in September his answer was only 'I have no comment.' The defendant should take no advantage because of his rejection of the opportunity to have counsel, but in the circumstances we dispose of the issue of delay and the other issues before us on substantive grounds so far as we can do so without giving the defendant such an advantage. Thus we pass the Commonwealth's points that the motion did not set forth the reasons relied on (G.L. [Ter.Ed.] c. 278, § 17; Commonwealth v. Schaffner, 146 Mass. 512, 514, 16 N.E. 280) and that the contention should have been made by plea in abatement as the record itself does not show that the defendant was available for trial. In re Lebowitch, 235 Mass. 357, 362, 126 N.E. 831. We do not think that G.L. (Ter.Ed.) c. 278, § 27 ('Decisions of the superior court upon questions raised upon a plea in abatement to an indictment or complaint shall be final'), can operate to deprive the defendant of a review of a decision so far as it involves a constitutional right. The essential facts were not in dispute and this sufficiently answers the Commonwealth's contention of lack of verification of, or agreement on, facts. We pass also the point that the decision of June 8, 1955, to which no exception was taken settled the issue against the defendant, at least for the significant part of the period of delay of two years and five months.

Article 11 of the Declaration of Rights declares: 'Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.' We think the second sentence of this article gives a defendant in a criminal case a right to a speedy trial.

Three reasons have been suggested for according an accused a speedy trial: (1) to protect the accused from prolonged preliminary imprisonment; (2) to relieve him of anxiety and public suspicion attendant upon an untried accusation; and (3) to insure that means of proving his innocence will be within his reach by minimizing the possibility of witnesses becoming unavailable and their memories dulled. People v. Prosser, 309 N.Y. 353, 356, 130 N.E.2d 891, 57 A.L.R.2d 295. The third of these reasons is applicable to persons in prison for other crimes, and in any event the protection of the Declaration of Rights extends with equal force to them.

The right is a personal one and may be waived. In the absence of special circumstances or controlling statute the rule elsewhere is that failure of the defendant to demand trial constitutes waiver. Shepherd v. United States, 8 Cir., 163 F.2d 974, 976-977; Fowler v. Hunter, 10 Cir., 164 F.2d 668, 670; People v. Scott, 74 Cal.App.2d 782, 784, 169 P.2d 970; State v. Boynton, 143 Me. 313, 323, 62 A.2d 182; State v. O'Leary, 25 N.J. 104, 111-112, 135 A.2d 321; State v. Lydon, 40 Wash.2d 88, 90, 241 P.2d 202. Cases cited in annotation 129 A.L.R. 572, 587 (1940). In some States a statute sets a specific period within which the accused must be brought to trial unless the accused is the cause of the delay or the prosecution shows good cause. See State v. Carrillo, 41 Ariz. 170, 16 P.2d 965; People v. Prosser, 309 N.Y. 353, 130 N.E.2d 891, 57 A.L.R.2d 295; State v. Chadwick, 150 Or. 645, 47 P.2d 232; Flanary v. Commonwealth, 184 Va. 204, 35 S.E.2d 135; Ex parte Chalfant, 81 W.Va. 93, 93 S.E. 1032.

Our statute places upon a person held under an indictment an obligation to ask for speedy trial as a condition of being bailed upon his own recognizance. General Laws (Ter.Ed.) c. 277, § 72, provides: 'Whoever is held in custody upon a indictment shall, if he requires it, either be tried at the sitting of the court next after the expiration of six months from the time when he was imprisoned or be bailed upon his own recognizance, unless the court finds that the witnesses on behalf of the government have been enticed or kept away or have been detained and prevented from attending the court by illness or inevitable accident.' This statute of course is not applicable to this case as the defendant was not being held under the indictment now before us.

In Re Lebowitch, 235 Mass. 357, 363, 126 N.E. 831, we said that even constitutional rights must be seasonably asserted.

We think that the full intent of the constitutional protection will be afforded by a rule that in the absence of a showing of circumstances which negative the implication, the failure to demand prompt trial implies a waiver of the right thereto. We need not consider what personal incapacities (see Pugliese v. Commonwealth, 335 Mass. 471, 140 N.E.2d 476) or physical restraints or other deterrents of action (see United States v. Chase, D.C., 135 F.Supp. 230), or what other circumstance in the particular case, would be sufficient to negative the implication of waiver. There is in this case no suggestion of any circumstance which might be deemed to negative the implication. The suggestion are of contrary import. The defendant asserted that two years earlier he had an attorney and was ready for trial. In the conduct of his own case he referred to Federal and State constitutions, and to court decisions and legal treatises, and he manifested familiarity with applicable law. Conceivably it could be concluded that the defendant was not averse to a delay, while he was in custody anyway, which might give support to such motions as were made.

We need not determine the effect of waiver in a case where there is such a long delay as to give rise to the presumption that a fair trial could not be had, or the effect of other extraordinary circumstance, notwithstanding a waiver. There was no such delay or circumstance here. Compare United States v. Chase, D.C., 135 F.Supp. 230.

The defendant asserted in the course of examination of witnesses at the hearing on the May, 1955, motion that he had written to the clerk two years before demanding trial. There was no sworn testimony; the statement was uncorroborated; the judge was not obliged to give it credence. There is no record of an application or motion prior to May, 1955.

The court on May 16, 1955, made provisional assignment of the case for trial on October 3, 1955. Manifestly the continuance from October 3 to October 17, 1955, or, as the Commonwealth states it, the definite assignment for that date, deprived the defendant of no constitutional right.

2. No error is shown in the denial of the defendant's motion for postponement due to ill health. He asked for a continuance for that reason on October 17, 1955, and was examined on the evening of that day by a physician at the State prison whose report concluded as follows: 'Examination this night reveals him to be nervous and tense. It is my feeling that this man is physically able to stand trial at this time. It must be remembered, however, that the chronic conditions as stated above may flare up at any time.'

The report showed that the defendant had been in the State prison colony hospital at Norfolk from August 14, 1955, to September 7, 1955, and thereafter in the dispensary at the State prison, that he had chronic epididymitis (inflammation of tube in testicle) and chronic prostatis; that 'during past months [he] has...

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