Com. v. Jones

• Citation: 275 N.E.2d 143,360 Mass. 498
• Parties: COMMONWEALTH v. Arthur W. JONES.
• Decision Date: 11 November 1971
• Court: United States State Supreme Judicial Court of Massachusetts

Page 143

275 N.E.2d 143

360 Mass. 498

COMMONWEALTH v. Arthur W. JONES.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 4, 1971.

Decided Nov. 11, 1971.

Robert V. Greco, Roslindale, for defendant.

Thomas F. Reardon, Asst. Dist. Atty. (Elizabeth C. Casey, Legal Asst. Dist. Atty., with him), for the Commonwealth.

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

CUTTER, Justice.

Jones was charged by indictment dated October 7, 1970, with armed robbery of a store (Honey Farm) in Jamaica Plain on July 19, 1968. He was found guilty by a judge, sitting without jury. The questions argued arise from the failure to arrest Jones until September 4, 1970, although a complaint and arrest warrant had issued from the Municipal Court of the Roxbury District on July 31, 1968. Jones contends that the long delay between the offence and his arrest unconstitutionally deprived him of a speedy trial. A Superior Court judge denied Jones's motion to dismiss based on this contention, after hearing evidence, the pertinent part of which we summarize below. Jones appealed. The case is before us under G.L. c. 278, §§ 33A--33G, as amended.

When the warrant for Jones's arrest issued on July 31, 1968, Detective Balutis (attached to Boston Police District 10) attempted (with Detective Roche) to serve it upon Jones at his mother's house at 12 Castlegate Road on some occasion after July 31, he thinks on a Saturday. There was 'nobody home.' He sent the warrant to District 9 (in the jurisdiction of which lies 12 Castlegate Road) 'to be * * * served on the evening or morning watch.' Thereafter the warrant was returned to the Roxbury court on December 14, 1968, without service. On September 4, 1970, after Jones was arrested on another charge, Detective Balutis obtained an alias warrant against Jones for the Honey Farm robbery charge.

Mrs. Mildred Jones, Jones's mother, testified that she had lived at 12 Castlegate Road after 1967, and that Jones had lived there with her 'off and on' until his arrest in May, 1969, on an unrelated holdup charge for which he was confined until his parole on April 22, 1970. He again was there until his arrest in September, 1970, when she first learned that he was charged with the Honey Farm holdup. She had no police inquiries about him prior to that date, although a parole officer had looked for him. There was evidence from her and Jones that he spent considerable time, especially on weekends, with a 'girl friend' who lived at a different address. Jones and his mother were away from their house part of the time. Jones, at the time of trial twenty-seven years old and serving a term at the Deer Island House of Correction, testified that he first learned of the Honey Farm charge in September, 1970. He stated, in somewhat rambling testimony, that on July 19, 1968, he 'was around. I can't remember.' He said that he could not even remember the person with whom he then was. ¹

At trial before another judge, the Honey Farm acting store manager, Woodrow Barbour, testified that he had selected Jones's photograph from a group of about twelve to fifteen pictures shortly after the robbery. He also identified Jones in court as resembling one of the two persons mentioned below. Two men, he stated, entered the store about 1:10 P.M. on the day of the robbery to buy some soft drinks. They left after a few minutes. About ten to fifteen minutes later the two men reappeared and walked around the store. One 'lifted a (pecan) pie from the pie case,' and took it to the counter. Barbour asked him if there was anything else. The other man pulled a gun from under his shirt. The man who had handled the pie took the money out of the cash register and asked for Barbour's wallet. The two men left, ran down the street to a waiting vehicle, and sped away. The police were called.

Barbour, in court, noted that Jones did not have a moustache in July, 1968, or the same type of hair arrangement in July, 1968, as when he later saw him twice in court in 1970, two years later. Barbour, who observed the intruders at the store for two or three minutes, agreed that he was 'not sure' but said that Jones looked 'like the man,' and that he was 'fairly certain' Jones was 'the man' who 'took the money.'

The pecan pie carton was left on the counter by the intruders. Subsequently, Detectives Roche and Balutis took it away for examination. There was persuasive expert testimony (which need not be stated in detail) warranting the conclusion that a fingerprint found on the box was that of Jones. ²

1. The police failure to serve the complaint warrant on Jones in July or early August, 1968, may have been caused by inefficiency or negligence in Police District 9 to which the warrant was sent. This, however, is by no means clear. In any event, there is no indication in the evidence that the failure (and consequent delay) was in any way intentional. ³ It may have been caused by the frequent absences of Jones, his mother, and her children from her house. We are unwilling to hold that mere delay in serving a complaint warrant, prior to indictment, 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.), cert. den. 404 U.S. ---, 92 S.Ct. 211, 30 L.Ed.2d 164 (1971). No indictment was returned until October 7, 1970, and Jones was tried on December 16, 1970. The 1968 complaint (despite the delay in arrest and in holding a probable cause hearing) does not seem to us, in the circumstances, to require that Jones, as matter of law, be freed from criminal responsibility for armed robbery. He is in no worse position than if his indictment, without prior complaint, had occurred toward the end of the applicable statute of limitations. See G.L. c. 277, § 63 (as amended through St.1955, c. 781, § 1), c. 265, § 17 (as amended through St.1952, c. 406, § 1).

We recognize that, in some instances, unconstitutional delay may arise after a 'formal complaint has been filed.' See Hoopengarner v. United States, 270 F.2d 465, 469 (6th Cir.). See also Foley v. United States, 290 F.2d 562, 565--566 (8th Cir.). We also recognize that prejudice may arise from delay because of a defendant's inability to remember past events and activities of a particular day which might clear him of a charge. The judge who heard the motion to dismiss...