Com. v. Horan

• Decision Date: 06 January 1972
• Parties: COMMONWEALTH v. John R. HORAN (and eleven companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 491

277 N.E.2d 491

360 Mass. 739

COMMONWEALTH v. John R. HORAN (and eleven companion cases ¹).

Supreme Judicial Court of Massachusetts, Worcester.

Argued Dec. 6, 1971.

Decided Jan. 6, 1972.

Francis X. Bellotti, Quincy, for defendant Prosser.

Leo V. Concannon, Boston, for defendant Horan.

Monroe L. Inker, Newtonville, for defendant McGarrahan Co.

John P. White, Jr., Boston, for defendant Viglione.

Stanley J. Jablonski, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and CUTTER, QUIRICO, BRAUCHER and HENNESSEY, JJ.

BRAUCHER, Justice.

On April 16, 1968, a span of a bridge under construction in Worcester collapsed. Three persons were killed and eight injured. Thirty-one months later, on November 17, 1970, the four defendants were indicted for manslaughter. The defendants moved to dismiss the indictments on the ground of delay. Twelve days of hearings on the motions were held in March and April, 1971, and on May 7, 1971, the judge reported the case to this court pursuant to G.L. c. 278, § 30A.

1. The judge stated that he was aware of no cases in this Commonwealth which have specifically considered the problem of alleged prosecutional delay in seeking an indictment, and posed the question whether the rule in Commonwealth v. Green, 353 Mass. 687, 690, 234 N.E.2d 534, 536; 'that prejudice need not be affirmatively shown' in cases of long delay, is applicable in cases of pre-indictment delay. He was 'unable to determine the test to be applied in this case,' and believed that the motions 'raise questions of law which are both doubtful and important and require a decision.'

After this report was made, in Commonwealth v. Jones, Mass., 275 N.E.2d 143, ^a we considered a case of delay in serving a complaint warrant, prior to indictment, and were unwilling to hold that the mere delay 'constitutes failure to afford a speedy trial, at least in the absence of 'much more than appears in the present case' (see Schlinsky v. United States, 379 F.2d 735, 737 (1st Cir.)) in the way of substantial prejudice to a defendant's ability to defend himself, or a substantial showing of deliberately improper police conduct harming a defendant. See United States v. DeMasi, 445 F.2d 251, 255--256 (2d Cir. (1971)), cert. den. 404 U.S. 882, 92 S.Ct. 211, 30 L.Ed.2d 164.'

Since then, we have been authoritatively informed that the right to a speedy trial granted by the Sixth Amendment to the Constitution of the United States 'has no application until the putative defendant in some way becomes an 'accused. " United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971). This does not occur until there is 'either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge.' Id. at 320, 92 S.Ct. at 463. In a Federal court, however, 'the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay . . . caused substantial prejudice to appellees' rights to a fair trial and that the delay was a purposeful device to gain tactical advantage over the accused.' Id. at 324, 92 S.Ct. at 465.

In that case the court said, 'No actual prejudice to the conduct of the defense is alleged or proven, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them. Appellees rely solely on the real possibility of prejudice inherent in any extended delay: that memories will dim, witnesses become inaccessible, and evidence lost. In light of the applicable statute of limitations, however, these possibilities are not in themselves enough to demonstrate that appellees cannot receive a fair trial and to therefore justify the dismissal of the indictment. Events of the trial may demonstrate actual, prejudice, but at the present time appellees' due process claims are speculative and premature.' Id. at 325, 92 S.Ct. at 466.

2. We follow the Supreme Court of the United States. In this case as in the Marion case, there is no showing that the prosecutor intentionally delayed to gain some tactical advantage over the defendants or to harass them. In some of the motions it was alleged that there was prejudice in the loss of witnesses and physical evidence, and evidence was presented in support of those allegations, but the judge has made no findings of actual prejudice.

The judge reported the following facts relating to the reasons for delay. On April 26, 1968, ten days after the collapse, the Commissioner of the Department of Public Works convened a three-member board of inquiry, which filed its final report in October, 1968, consisting of 324 pages...