Com. v. Horne

• Decision Date: 04 January 1973
• Citation: 291 N.E.2d 629,362 Mass. 738
• Parties: COMMONWEALTH v. Franklin D. HORNE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 629

291 N.E.2d 629

362 Mass. 738

COMMONWEALTH v. Franklin D. HORNE.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Nov. 6, 1972.

Decided Jan. 4, 1973.

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 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 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 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, 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. Our decisions in Commonwealth v. Marsh, 354 Mass. 713, 718, 242 N.E.2d 545, and Commonwealth v. Lauria, Mass., 268 N.E.2d 363, ^a lend strong support to the Commonwealth's argument that '(i)n order to be effective and negate an implication of waiver, the demand for trial should be made to the court and not merely the district attorney or the clerk's office.' We established a strict demand-waiver rule in the Marsh case, supra, which, if followed, would warrant a finding that Horne waived his right to a speedy trial by his failure to present his motion for a speedy trial to a judge. As stated in the Marsh case, 'Defendants who are interested only in laying the groundwork for dismissal in the event of delay should not prevail merely because a motion had previously been filed. Where counsel files motions for trial, but does not seek action on them, it is a reasonable inference that the defendant prefers no trial . . .. Waiver of the right to a speedy trial is implicit in such inaction,' supra, 354 Mass. at 718, 242 N.E.2d at 548. In the Lauria case, supra, we noted that '(t)o negative the implication of waiver, Lauria's motion for a speedy trial should have been promptly presented to a judge.' (Mass.Adv.Sh.(1971) p. 480, 268 N.E.2d p. 364.)

However, the United States Supreme Court rejected this automatic demand-waiver rule in Barker v. Wingo, 407 U.S. 514, 528, 92 S.Ct. 2182, 33 L.Ed.2d 101. The Supreme Court noted, 'The nature of the speedy trial right does make it impossible to pinpoint a precise time in the process when the right must be asserted or waived, but that fact does not argue for placing the burden of protecting the right solely on defendants. A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process.' (p. 527, 92 S.Ct. p. 2190.) Therefore, the court rejected 'the rule that a defendant who fails to demand a speedy trial forever waives his right. This does not mean, however, that the defendant has no responsibility to assert his right. We think the better rule is that the defendant's assertion of or failure to assert his right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right.' (p. 528, 92 S.Ct. p. 2191.) The Supreme Court reasoned that such a formulation avoids the rigidities of the demand-waiver rule and the resulting possible unfairness in its application. The court concluded in the Barker case that every speedy trial case must be considered on an 'ad hoc' basis where factors such as 'Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant' (p. 530, 92 S.Ct. p. 2192) should be considered in determining whether a particular defendant has been deprived of his right. (p. 530, 92 S.Ct. 2182).

Thus, Barker v. Wingo, supra, creates a balancing test which treats the defendant's failure to assert his speedy trial right as one of the many factors to be considered in the 'difficult and sensitive balancing process.' (p. 533, 92 S.Ct. 2182.) The rationale in the Barker case compels us to deviate from the strict demand-waiver rule we adopted in Commonwealth v. Marsh, supra, where we held that the defendant waived his speedy trial right despite his motion demanding one because of his failure to bring his motion to the trial court's attention. As we understand the Barker case, its holding precludes a finding of waiver even in those cases where the defendant fails to make a motion for a speedy trial, unless the prosecution can 'show that the claimed waiver was knowingly and voluntarily made.' ¹ (p. 529, 92 S.Ct. p. 2191.)

The facts of this case present a close question as to whether Horne's failure to press his motion for a speedy trial and his acquiescence in the filing of the indictments constituted a knowing and voluntary waiver of his right to a speedy trial. However, even if we assume that the prosecution did not satisfy its burden of showing that Horne intentionally relinquished a known right, see Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461, our consideration of the reason for the delay between indictment and trial and the claim of prejudice involved lead us to conclude that the defendant's constitutional right to a speedy trial was not denied.

LENGTH AND REASON FOR DELAY.

The three year four month delay between indictment and the defendant's motion to dismiss is sufficient...