Com. v. Lauria

• Decision Date: 02 April 1971
• Citation: 268 N.E.2d 363,359 Mass. 168
• Parties: COMMONWEALTH v. Francesco J. LAURIA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 363

268 N.E.2d 363

359 Mass. 168

COMMONWEALTH v. Francesco J. LAURIA.

Supreme Judicial Court of Massachusetts, Essex.

Argued March 1, 1971.

Decided April 2, 1971.

Anthony M. Fredella, Somerville, for defendant.

Charles E. Chase, Asst. Atty. Gen. (Ruth I. Abrams, Asst. Atty. Gen., with him), for the Commonwealth.

Before TAURO, C.J., and SPALDING, SPIEGEL, REARDON and BRAUCHER, JJ.

BRAUCHER, Justice.

Lauria appeals under G.L. c. 278, §§ 33A--33G, from a conviction of aiding and abetting a bank officer to make a false entry in a bank report, in violation of G.L. c. 266, § 53A. He makes three assignments of error: (1) denial of his motion to dismiss the indictment for failure to grant him a speedy trial, (2) denial of his motion for a directed verdict, and (3) denial of his motion for a new trial. There was no error.

1. From the docket entries and the transcript of the hearing on the motion to dismiss, the following facts appear. Lauria was indicted on November 8, 1968. He moved for a speedy trial on November 25, 1969, and on February 4, 1969, the Commonwealth assented to the allowance of the motion. On July 8, 1969, at a special sitting to handle this case and a related group of cases, both parties were ready for trial. The Commonwealth brought to the judge's attention newspaper publicity based on the fact that a principal defendant had pleaded guilty to fifty-four indictments. The judge determined the publicity to be projudicial to a fair and impartial trial of all the defendants, and on his own motion, over Lauria's objection, continued the cases. In November, 1969, the Commonwealth moved for assignment of a trial date, and by agreement trial was set for March 17, 1970. Lauria's motion to dismiss was filed and dinied on March 16, 1970, and the case was tried, jury waived, on March 25, 1970, more than sixteen months after the indictment. During this period Lauria was not in custody, and there is no showing of prejudice through loss of evidence or the like. ¹

The right of a criminal defendant to a speedy trial is guaranteed by art. 11 of the Declaration of Rights and by the Sixth Amendment to the Constitution of the United States, applicable to the States under the Fourteenth Amendment. Commonwealth v. Hanley, 337 Mass. 384, 387, 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, 106, 202 N.E.2d 300; Commonwealth v. McGrath, 348 Mass. 748, 750, 205 N.E.2d 710; Commonwealth v. Needel, 349 Mass. 580, 581, 211 N.E.2d 335; Bishop v. Commonwealth, 352 Mass. 258, 260, 225 N.E.2d 345; Commonwealth v. Thomas, 353 Mass. 429, 431, 233 N.E.2d 25; Commonwealth v. Green, 353 Mass. 687, 689, 234 N.E.2d 534; Commonwealth v. Marsh, 354 Mass. 713, 715, 242 N.E.2d 545; Commonwealth v. Wilson, 355 Mass. 441, 445, 245 N.E.2d 439; Klopfer v. North Carolina, 386 U.S. 213, 222, 87 S.Ct. 988, 18 L.Ed.2d 1; Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607; Dickey v. Florida, 398 U.S. 30, 36--38, 90 S.Ct. 1564, 26 L.Ed.2d 26. But the right may be waived. To negative the implication of waiver, Lauria's motion for a speedy trial should have been promptly presented to a judge. Commonwealth v. Marsh, supra, 354 Mass. at 717, 242 N.E.2d 545. This was not done.

Lauria contends that the granting of a continuance over his objection on July 8, 1969, brought him within the principle that "(w)hen a person charged with (a) crime is willing to proceed * * * to trial, no delay on the part of the prosecution is reasonable, except only that which is necessary for proper preparation and to secure the attendance of witnesses.' 1 Cooley, Constitutional Limitations (8th ed.) p. 646.' Commonwealth v. Thomas, supra. We do not pass on that contention, for the continuance was not 'delay on the part of the prosecution,' but was ordered on the judge's own motion. A fair and impartial trial is not solely a right of the defendant; there is also a public responsibility to diminish the danger of pre-trial publicity. Compare Kennedy v. Justice of Dist. Court of Dukes County, 356 Mass. 367, 376--379, 252 N.E.2d 201. We agree with the judge who denied the motion to dismiss that in all the circumstances the continuance was reasonable, and that in view of the number of indictments and defendants and the resulting complexities the trial was not unconscionably or unreasonably delayed.

We are very much aware of the evils of delay in the trial of criminal cases. See McLaughlin, Of Men and Buildings--Crisis in Judicial Administration, 55 Mass.L.Q. 331, 333--336. 'Crowded dockets, the lack of judges or lawyers, and other factors no doubt make some delays inevitable.' Dickey v. Florida, supra, 398 U.S. at 38, 90 S.Ct. at 1569. In People v. Ganci, 27 N.Y.2d 418, 318 N.Y.S.2d 484, 267 N.E.2d 263, calendar congestion caused a delay of sixteen months during which the defendant was in prison for an unrelated crime, but the indictment was not dismissed. 'Both Federal and State judicial agencies are currently addressing themselves to this acute public problem.' Id. at 423, 318 N.Y.S.2d at 486, 267 N.E.2d at 265. See United States ex rel. Frizer v. McMann, 437 F.2d 1312 (2d Cir.). ^a

In Massachusetts, as elsewhere, trial priority ordinarily is given to defendants who are in custody. See G.L. c. 277, §§ 72, 72A. This means that delay caused by calendar congestion is greater for defendants free on bail like Lauria. Delay in his case was increased because his case was one of a complex group of related cases and because prejudicial publicity threatened the fairness of the trial. The United States Court of Appeals for the Second Circuit on January 5, 1971, promulgated a rule for Federal courts in that circuit requiring that as of July 5, 1971, a charge be dismissed if without good cause the government is not ready for trial within six months after the arrest or formal...