Com. v. Horne
| Court | United States State Supreme Judicial Court of Massachusetts |
| Writing for the Court | Before TAURO; TAURO |
| Citation | 291 N.E.2d 629,362 Mass. 738 |
| Decision Date | 04 January 1973 |
| Parties | COMMONWEALTH v. Franklin D. HORNE. |
Page 629
v.
Franklin D. HORNE.
Decided Jan. 4, 1973.
Page 631
Robert V. Greco, Roslindale, for defendant.
John P. Connor, Jr., Asst. Dist. Atty., for the Commonwealth.
Before TAURO, C.J., and REARDON, QUIRICO, KAPLAN and WILKINS, JJ.
TAURO, Chief Justice.
The defendant appeals under G.L. c. 278, §§ 33A--33G, from convictions upon indictments charging breaking and entering in the nighttime with intent [362 Mass. 739] to commit larceny (Indictment No. 42632), kidnapping (Indictment No. 42633), armed robbery (Indictment No. 42634), assault and battery by means of a dangerous weapon (Indictment Nos. 42635 and 42636) and escape (Indictment No. 42637). The indictments were returned June 9, 1967, in the Superior Court in Norfolk County. The actual trial on these indictments did not begin until June, 1971. The only error assigned and argued was the denial of the defendant's motion to dismiss the indictments. The defendant contends that the failure of the Commonwealth to try the defendant between June 9, 1967, and October 13, 1970, deprived him of his constitutional right to a speedy trial guaranteed by art. 11 of our Declaration of Rights and the Sixth Amendment to the Constitution of the United States, applicable to the States under the Fourteenth Amendment. Commonwealth v. Hanley, 337 Mass. 384, 149 N.E.2d 608, cert. den. sub nom. Hanley v. Massachusetts, 358 U.S. 850, 79 S.Ct. 79, 3 L.Ed.2d 85. Commonwealth v. Chase, 348 Mass. 100, 202 N.E.2d 300. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101.
The following pertinent facts appear from the record before us. The defendant escaped from the Correctional Institution at Walpole on May 21, 1967. All the charges for which he was later indicted arose from activities following his escape. On May 29, 1967, the defendant was arrested on unrelated charges in West Virginia and transferred to Kentucky. The district attorney of Norfolk County (district attorney) learned on June 6, 1967, that the defendant was in Kentucky being held for grand jury action by Federal and Kentucky authorities. On June 9, the defendant was indicated in Norfolk County on the charges stemming from his escape. The defendant was transferred from Kentucky to Tennessee where he was indicted on an unrelated kidnapping charge October 3, 1967. On October 4, 1967, at the first criminal session after the Massachusetts indictments were returned, a default was entered and a capias issued against the defendant. On March 1, 1968, the Norfolk County [362 Mass. 740] indictments were filed pending the defendant's apprehension. On March 5, 1968, the district attorney wrote a letter to the Tennessee authorities which enclosed a capias and requested information as to when the defendant would be released and on the disposition of charges against him. The defendant was thereafter tried and convicted in Tennessee on May 9, 1968. In July of 1968, the defendant began serving
Page 632
a thirty-six and one-half years Federal sentence in Atlanta. After learning on July 30, 1968, that the defendant was beginning to serve his sentence, the district attorney lodged a capias against him in August, 1968. On December 12, 1968, the defendant filed a motion moving for a speedy trial. In accord with G.L. c. 277, § 72A, the defendant was brought promptly before the court on February 19, 1969, at which time the case was continued for trial. On March 13, 1969, the defendant appeared in Norfolk Superior Court at which time the indictments were filed without a change of plea with the defendant's consent. The Commonwealth agreed to the allowance of defence counsel's request that the indictments be filed because the defendant, age thirty-five, was then serving a thirty-six and one-half year sentence. However, the district attorney removed the indictments from the file and had a capias lodged against the defendant on June 9, 1969, after learning that the defendant's Federal conviction had been reversed and a new trial granted. On October 7, 1969, after a second trial on the Federal charges, the defendant was acquitted on grounds of insanity. The Commonwealth then commenced rendition proceedings which the defendant opposed until August 23, 1970, at which time the defendant was returned to this Commonwealth. On October 13, 1970, the defendant filed a motion to dismiss the indictments based on his claim that the delay between June 9, 1967, and October 13, 1970, violated his constitutional right to a speedy trial. After a full hearing on the motion the Superior Court judge denied the defendant's motion to dismiss on May 25, 1971. The delay between October, 1970, and May, [362 Mass. 741] 1971, was for the most part due to the defendant's temporary transfer to a Federal institution in Georgia. This was upon his motion for purposes of prosecuting civil actions brought by him in that jurisdiction, and he stipulated that the delay so caused was not material in the instant case.Before reaching the merits of the defendant's claim, we must first decide whether he has waived his right to a speedy trial by his failure to seek action on his motion for a speedy trial and his acquiescence in his counsel's motion that the indictments be filed....
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Com. v. Campbell
...prejudice to the defendant." Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). See Commonwealth v. Horne, 362 Mass. 738, 741-742, 291 N.E.2d 629 (1973). These factors are to be employed in a "difficult and sensitive balancing process," with each factor being ac......
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Com. v. Look
...month delay); Commonwealth v. Boyd, 367 Mass. 169, 179-180, 326 N.E.2d 320 (1975) (fourteen month delay); Commonwealth v. Horne, 362 Mass. 738, 739, 743, 291 N.E.2d 629 (1973) (forty-eight month delay). In looking to the other three factors delineated in Barker, supra, we weigh each in the ......
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Com. v. Beckett
...not infringed. See, e. g., Commonwealth v. Gilbert, 366 Mass. 18, 21, 314 N.E.2d 111 (1974) (thirty-one months); Commonwealth v. Horne, 362 Mass. 738, 739, 291 N.E.2d 629 (1973) (forty-eight months). See also Commonwealth v. Burhoe, --- Mass.App. ---, --- a, 337 N.E.2d 913 (1975) (thirty-ei......
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Com. v. Gove
...used in Sixth Amendment cases. E.g., Commonwealth v. Lauria, 359 Mass. 168, 268 N.E.2d 363 (1971); Commonwealth v. Horne, --- Mass. ---, 291 N.E.2d 629 (1973) (Mass.Adv.Sh. (1973) 17). For purposes of this opinion, we treat the Federal and Commonwealth speedy trial provisions as d. Mass.Adv......
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Com. v. Campbell
...to the defendant." Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). See Commonwealth v. Horne, 362 Mass. 738, 741-742, 291 N.E.2d 629 (1973). These factors are to be employed in a "difficult and sensitive balancing process," with each factor bei......
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Com. v. Look
...month delay); Commonwealth v. Boyd, 367 Mass. 169, 179-180, 326 N.E.2d 320 (1975) (fourteen month delay); Commonwealth v. Horne, 362 Mass. 738, 739, 743, 291 N.E.2d 629 (1973) (forty-eight month delay). In looking to the other three factors delineated in Barker, supra, we weigh each in the ......
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Com. v. Beckett
...not infringed. See, e. g., Commonwealth v. Gilbert, 366 Mass. 18, 21, 314 N.E.2d 111 (1974) (thirty-one months); Commonwealth v. Horne, 362 Mass. 738, 739, 291 N.E.2d 629 (1973) (forty-eight months). See also Commonwealth v. Burhoe, --- Mass.App. ---, --- a, 337 N.E.2d 913 (1975) (thirty-ei......
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Com. v. Gove
...used in Sixth Amendment cases. E.g., Commonwealth v. Lauria, 359 Mass. 168, 268 N.E.2d 363 (1971); Commonwealth v. Horne, --- Mass. ---, 291 N.E.2d 629 (1973) (Mass.Adv.Sh. (1973) 17). For purposes of this opinion, we treat the Federal and Commonwealth speedy trial provisions as d. Mass.Adv......