Com. v. Judd, 87-422

• Decision Date: 17 December 1987
• Docket Number: No. 87-422,87-422
• Citation: 25 Mass.App.Ct. 921,516 N.E.2d 1175
• Parties: COMMONWEALTH v. Timothy JUDD.
• Court: Appeals Court of Massachusetts

Page 1175

516 N.E.2d 1175

25 Mass.App.Ct. 921

COMMONWEALTH v. Timothy JUDD.

No. 87-422.

Appeals Court of Massachusetts Franklin.

Argued Sept. 10, 1987.

Decided Dec. 17, 1987.

Rosemary P. Tarantino, Asst. Dist. Atty., for the Com.

Timothy Judd, pro se.

Before GREANEY, C.J., and GRANT and BROWN, JJ.

RESCRIPT.

The defendant appeals from his conviction on the charge of escape from a prison camp. The defendant, then serving a six- to fifteen-year sentence, escaped on July 31, 1985, from a prison work camp at Warwick, Massachusetts. On August 1, 1985, the District Court in Orange issued a complaint and warrant for his arrest. The defendant turned himself in to authorities in New York State on August 3, 1985. The defendant waived interstate rendition, and Massachusetts authorities took him into custody on September 13, 1985. At that time, the defendant was returned to M.C.I., Cedar Junction. On September 26, 1985, the defendant filed a motion for speedy trial in the District Court. His first appearance before a court was on November 26, 1985, the day he was arraigned in the Superior Court on an indictment obtained in that court by the prosecutor. After the indictment was obtained, the complaint in the District Court was dismissed. In a jury-waived trial in the Superior Court on January 15, 1987, the defendant was found guilty and sentenced to three to five years, to be served from and after the completion of the sentence he was currently serving.

On appeal, the defendant asserts that the Commonwealth's delay in bringing him before a court for his initial appearance or arraignment amounted to a violation of both his right to due process of law and his right to counsel. On those grounds, the defendant argues that the charge against him should have been dismissed.

"A defendant who has been arrested shall be brought before a court if then in session, and if not, at its next session." Mass.R.Crim.P. 7(a)(1), 378 Mass. 855 (1979). The thrust of the policy underlying rule 7(a)(1) goes primarily to preventing the unlawful detention of a defendant and reducing the incentive of police to apply undue pressure upon a defendant in order to obtain a statement. Commonwealth v. Cote, 386 Mass. 354, 361 n. 11, 435 N.E.2d 1047 (1982). The usual remedy for failure to arraign a defendant in a timely manner is the suppression of any statements obtained prior to the arraignment, the treatment similarly accorded a defendant who is illegally arrested. Id. at 361, 435 N.E.2d 1047. The defendant argues that his rights may be vindicated only by the dismissal of the charge against him because he made no statements between the time of his return to custody and the date of his arraignment in the Superior Court, and thus the usual remedy of suppression is of little value.

A dismissal of the charge against the defendant would not serve either of the purposes underlying the rule. Nor has it been made to appear that the defendant suffered any actual prejudice as a result of the delay in his arraignment. See Commonwealth v. Imbruglia, 377 Mass. 682, 688, 387 N.E.2d 559 (1979). Appointment of an attorney at or close to the time of the defendant's arrest could not have enhanced his defense. In addition, the defendant was not unlawfully detained; rather, the Massachusetts authorities simply returned him to a Massachusetts correctional institution where he continued to serve out the sentence previously imposed. In any event, if there was any prejudice to the defendant, it was negated upon his ultimate arraignment and appointment of counsel. Commonwealth v. Andrade, 389 Mass. 874, 882 n. 4, 453 N.E.2d 415 (1983).

In an attempt to demonstrate prejudice the defendant focuses on the period between arrest and arraignment during which the prosecutor obtained an indictment against the defendant in the Superior Court. The defendant argues that, if he had been prosecuted in the District Court from which the arrest warrant originally issued, rather than in the Superior Court, a sentence in excess of two and a half years could not have been imposed. ¹ G.L. c. 127, § 83C. The defendant goes on to argue that because of the delay, he lost the opportunity to plead guilty or nolo contendere and receive a lighter sentence than the one imposed at his trial. As the defendant did not plead guilty in the Superior Court, we think that the argument that he would have done so in the District Court is so speculative as to be without force. Cf. Commonwealth v. Rodriguez, 380 Mass. 643, 649-650, 405 N.E.2d 124 (1980) (trial judge's conclusory statement that witnesses' memories had probably dimmed was too speculative based on the record below).

In deciding whether to dismiss the indictment, the other significant factor to examine is whether the delay in arraignment was due to deliberate and intentional misconduct on the part of the Commonwealth, either as a means of achieving a tactical advantage, or with reckless disregard for known risks to the defendant's ability to mount a defense. Commonwealth v. Imbruglia, 377 Mass. at 691, 387 N.E.2d 559. If either of those factors played a role in the delay, the appropriate remedy is dismissal of the charge. Ibid.

In this instance, the Commonwealth gained nothing through the delay in the defendant's arraignment, certainly not a tactical advantage. The Superior Court judge found that the delay in arraignment was inadvertent on the part of the Commonwealth. We conclude that such inadvertent delay did not benefit the Commonwealth or prejudice the defendant. No witness's memory was dimmed or blurred by the passage of time; indeed, the defendant called no witnesses, nor did he take the stand himself. Cf. Commonwealth v. Gove, 366 Mass. 351, 364, 320 N.E.2d 900 (1974).

The defendant also argues that he was denied his right to a speedy trial. The Massachusetts Rules of Criminal Procedure require that a defendant be brought to trial within twelve months of his return date. Mass.R.Crim.P. 36(b)(1)(C), 378 Mass. 910 (1979). As applied to this defendant's situation, the rules define the return date as the day upon which a defendant, "if under arrest, does first appear before a court to answer the charges against him." Mass.R.Crim.P. 2(b)(15), 378 Mass. 846 (1979).

Because the defendant's arraignment on November 26, 1985, on the escape charge was his first appearance before a...