Com. v. Jones

• Citation: 383 N.E.2d 527,6 Mass.App.Ct. 750
• Parties: COMMONWEALTH v. Clifford JONES.
• Decision Date: 26 December 1978
• Court: Appeals Court of Massachusetts

Page 527

383 N.E.2d 527

6 Mass.App.Ct. 750

COMMONWEALTH v. Clifford JONES.

Appeals Court of Massachusetts, Suffolk.

Argued Oct. 11, 1978.

Decided Dec. 26, 1978.

Susan J. Baronoff, Boston, for defendant.

Kathleen M. Curry, Asst. Dist. Atty., for the Commonwealth.

Before HALE, C. J., and KEVILLE and BROWN, JJ.

HALE, Chief Justice.

The defendant was convicted of armed robbery (G.L. c. 265, § 17) on indictment no. 0331 and was also convicted of assault and battery by means of a dangerous weapon (G.L. c. 265, § 15A) on indictment no. 0798 and sentenced to concurrent terms of seven to ten years at the Massachusetts Correctional Institution at Walpole. ¹ He assigns as error the trial judge's refusal to dismiss the indictments on the ground that his right to a speedy trial as guaranteed by G.L. c. 277, § 72A, and by the Federal and State Constitutions was violated. He also assigns as error under indictment no. 0798 the judge's instruction concerning criminal responsibility for the acts of an accomplice.

1. On May 1, 1975, a District Court issued a complaint and a warrant for the defendant's arrest in connection with a robbery committed on April 12, 1975. The defendant was apprehended in Iowa in August, 1975, and returned to Massachusetts sometime thereafter. On October 3, 1975, while being held at the Charles Street Jail awaiting proceedings on unrelated charges, the defendant filed a motion for a speedy trial or other disposition of the robbery charge. After a series of continuances the defendant (who in the meantime had started serving a sentence at the Massachusetts Correctional Institution at Concord for another crime) on December 24, 1975, filed a second application for a speedy trial or other disposition with the District Court which had issued the aforementioned complaint. On March 31, 1976, the court held a hearing at which the judge found probable cause and bound the defendant over to the grand jury, which returned the indictments mentioned above. Arraignment on those indictments took place on August 4, 1976. From that time until the defendant's trial, which began on February 23, 1977, there followed a series of court appearances for pretrial motions or for trial.

General Laws c. 277, § 72A, as appearing in St.1963, c. 343, § 72A, provides that the Commissioner of Correction or another prison official, upon learning of an untried charge against a prisoner "serving a term of imprisonment," must give that prisoner notice of the charge, and that the prisoner if he applies for a speedy trial, "shall, within six months after such application is received by the court, be brought into court for trial or other disposition of any such indictment, information or complaint, unless the court shall otherwise order."

The six-month statutory period started running, as the defendant concedes, at the time the second application was filed on December 24, 1975, because only at that time was he "serving a term of imprisonment," as required by the statute. Commonwealth v. Dabrieo, 370 Mass. ---, --- - --- ^A, 352 N.E.2d 186 (1976). ²

The statutory requirement of a "disposition" within six months was initially satisfied when the defendant was indicted on May 13, 1976. Commonwealth v. Stewart, 361 Mass. 857, 279 N.E.2d 697 (1972). We shall assume without deciding that a pretrial disposition does not completely satisfy the Commonwealth's statutory duty and that such a disposition starts the running of another six-month period for trial or other disposition under the original § 72A application. See, e.g., Commonwealth v. Royce, 358 Mass. 597, 599, 266 N.E.2d 308 (1971); Commonwealth v. Stewart, 361 Mass. at 858, 279 N.E.2d 697; Commonwealth v. Underwood, 3 Mass.App. at --- - --- ^B, 335 N.E.2d 915.

Between indictment and trial there was a nine-month and ten-day delay. However, 72A does not require the automatic dismissal of cases where the trial is not begun within six months of an event that starts the running of the statutory time limit. Commonwealth v. Alexander, 371 Mass. ---, --- - --- ^C, 359 N.E.2d 306 (1977). Those delays to which a defendant acquiesces (Commonwealth v. Carr, 3 Mass.App. [6 Mass.App.Ct. 753] ---, --- - --- ^d, 338 N.E.2D 844 (1975); Commonwealth v. Campbell, 5 Mass.App. ---, ---, --- - --- ^E, 366 N.E.2d 44 (1977), for which he is responsible (Commonwealth v. Loftis, 361 Mass. 545, 549-550, 281 N.E.2d 258 (1972)), or from which he benefits (Commonwealth v. Boyd, 367 Mass. 169, 178, 326 N.E.2d 320 (1975); Commonwealth v. Alexander, 371 Mass. at --- - --- ^F, 359 N.E.2d 306) must be subtracted from the time of total delay to ascertain the length of delay for statutory purposes. Commonwealth v. Campbell, 5 Mass.App. at --- ^G, 366 N.E.2d 44. We need not look beyond the delay of the three months and nineteen days between August 4 and November 23, 1976, to which the defendant concedes he agreed and from which he benefited. This delay subtracted from the total delay results in a showing that the defendant went to trial within six months of the indictment. The record thus reveals no violation of the defendant's right to a speedy trial under § 72A.

2. As stated earlier, the defendant also argues that he was denied his right to a speedy trial guaranteed by the Federal and State Constitutions ³ (see Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); Commonwealth v. Gove, 366 Mass. 351, 356-357, 320 N.E.2d 900 (1974)), which provisions are analogous for purposes of this discussion. Commonwealth v. Underwood, 3 Mass.App. at --- ^H, 335 N.E.2d 915. We are again called upon to engage in the balancing process described in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972), ⁴ to determine whether the Commonwealth has complied with the constitutional mandate for a speedy trial.

In this case the right attached at the time the complaint issued. See Commonwealth v. Underwood, 3 Mass.App. at --- ^I, 335 N.E.2d 915. With this measure, the delay between the complaint and the start of the trial was twenty-one months and twenty-two days. This is a sufficient length of time to trigger an examination of the other three factors mentioned in Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. 2182.

By two formal motions, the first of which was made within two months of his arrest, the defendant promptly asserted his rights, but this standing alone is not enough. There were good reasons for much of the delay. Between the time of the complaint (May 1, 1975) and his arrest and return to Massachusetts, which occurred at an unspecified time before the October 3 application for speedy trial, the defendant was not in the Commonwealth's custody. The defendant does not argue that the Commonwealth was dilatory in securing his return for trial, so that period cannot be attributed to the prosecution. Commonwealth v. Underwood 3 Mass.App. at --- - --- ^J, 335 N.E.2d 915.

Between the October 3, 1975, application for a speedy trial and the March 31, 1976, hearing at which the defendant was bound over to the grand jury, there were a number of unexplained and apparently unobjected to delays in the District Court. ⁵

Reasons for each delay are not entirely clear from the record, although we note that the factor most likely to have contributed to the delays was the Commonwealth's inability to secure the presence of the victim (the key witness) and the defendant at the hearings. As in Commonwealth v. Gove, 366 Mass. at 362, 320 N.E.2d at 909, "(t)he defendant has not established lack of due diligence by the Commonwealth (or) . . . deliberate efforts by the Commonwealth to postpone trial." The defendant alleged that this delay was the fault of the Commonwealth but did not point to any unreasonable conduct on its part. Delays granted to allow the Commonwealth to locate a key witness (Barker v. Wingo, 407 U.S. at 531, 92 S.Ct. 2182; Commonwealth v. Daggett, 369 Mass. ---, --- - --- ^K, 343 N.E.2d 409 (1976)) or those caused by a failure quickly to locate the defendant within the correctional system when he had been a fugitive from justice for some time after the issuance of the complaint (Commonwealth v. Underwood, 3 Mass.App. at --- ^L, 335 N.E.2d 915) are often justifiable and not properly chargeable against the Commonwealth. See Commonwealth v. Gilbert, 366 Mass. 18, 22-23, 314 N.E.2d 111 (1974); Commonwealth v. Beckett, 372 Mass. ---, --- ^M, 366 N.E.2d 1252 (1977). It is probable that the delay here was justifiable on one of the above grounds. Even if we assume for purposes of this discussion that this delay was chargeable to the Commonwealth as if it were an administrative delay for which the Commonwealth must bear ultimate responsibility, it does not weigh against the Commonwealth as seriously as would an intentional attempt to delay the proceedings. See, e.g., Commonwealth v. Burhoe, 3 Mass.App. ---, --- ^N, 337 N.E.2d 913 (1975); Commonwealth v. Blaney, 5 Mass.App. ---, --- ^O, 359 N.E.2d 958 (1977).

The delay from the March 31 bindover hearing to May 13, when the indictments were returned, is unexplained. We assume that it was caused by congestion due to the number of cases before the grand jury and that the case came too late to be heard by the April grand jury, an inadvertent though perhaps inevitable administrative delay, that is, as noted above, chargeable against the Commonwealth to a lesser degree than a deliberate delay.

Following the indictment on May 13, 1976, there was a period of nine months and ten days until the trial on February 23, 1977. An examination of the Superior Court docket and of the transcripts of proceedings in the first criminal session reveals that nearly four months of the delay were either for the benefit of the defendant or acquiesced in by him. Delays for which the defendant is responsible are not chargeable against the Commonwealth. Commonwealth v. Horne, 362 Mass. 738, 744, 745, n. 2, 291 N.E.2d 629 (1973). Commonwealth v. Boyd, 367 Mass. at 180, 326...