Com. v. Lauria

• Citation: 411 Mass. 63,576 N.E.2d 1368
• Parties: COMMONWEALTH v. Michael LAURIA and eleven companion cases 1 .
• Decision Date: 27 August 1991
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1368

576 N.E.2d 1368

411 Mass. 63

COMMONWEALTH v. Michael LAURIA

and

eleven companion cases ¹.

Supreme Judicial Court of Massachusetts Middlesex.

Argued May 8, 1991.

Decided Aug. 27, 1991.

Joseph James Balliro, Jr., Boston, for Michael Lauria.

John R. Campbell, Boston, for Edward Long.

William F. Bloomer, Asst. Dist. Atty., for the Com.

Albert C. Bielitz, Jr., Cambridge, for Michael Joyce, joined in a brief.

Before LIACOS, C.J., and WILKINS, ABRAMS, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

On March 1, 1988, a Middlesex County grand jury indicted the defendants, Michael Lauria, Edward Long, and Michael Joyce on charges of aggravated rape, kidnapping, assault by means of a dangerous weapon, and indecent assault and battery. On December 12, 1989, the defendants filed motions to dismiss the indictments on the ground that they had not been brought to trial within twelve months of their arraignments as required by Mass.R.Crim.P. 36(b)(1), 378 Mass. 909 (1979). ² The motions were denied by a judge of the Superior Court (motion judge) who reported, in substance, the correctness of his decision to the Appeals Court. See Mass.R.Crim.P. 34, 378 Mass. 905 (1979). That court concluded that the motions had been improperly denied, and that all charges against each defendant should have been dismissed. Commonwealth v. Lauria, 29 Mass.App.Ct. 542, 562 N.E.2d 1367 (1990). We granted the Commonwealth's application for further appellate review and now conclude that the motion judge correctly denied the defendants' motions to dismiss.

The Commonwealth alleges that the three defendants offered the complainant and her male companion a ride in their automobile on February 14, 1988. Thereafter, the defendants allegedly ejected the male companion from the vehicle by force, confined the complainant within the vehicle, raped her, and then later attempted to run her down with the vehicle. The defendants were identified by both the complainant and her male companion at the police station. Lauria was arraigned on March 8, 1988. Long and Joyce were arraigned on March 22, 1988. All three defendants were released on bail and have been at liberty throughout these proceedings.

The procedural history of the cases, as set forth by the motion judge, is as follows. At the pretrial conference on April 12, 1988, a motion hearing date of May 18, 1988, was scheduled. On May 6, 1988, Lauria filed twenty-three motions including a motion to suppress and a motion to dismiss. On May 12, 1988, Long also filed a motion to suppress. Joyce did not file any motions to suppress or dismiss, although he did file other motions. On May 18, 1988, nonevidentiary motions were heard and the cases were continued. Defense counsel made no objection to the continuance. On July 12, 1988, the cases were continued until August 25, 1988, again without objection. On August 25, 1988, Joyce moved to join in the codefendants' motions to suppress. That motion was denied. On October 4, 1988, Joyce filed a motion to file a late suppression motion.

At the end of August, 1988, the sessions judge (judge), who had been dealing with the motions in the case, was transferred to the Suffolk Superior Court, where, the motion judge found, "he was immersed in the responsibilities of the first criminal session and the evening Charles Street Jail cap for approximately nine months." For a portion of this time, the case file could not be located. The motion judge found that, during this period, none "of the three defendants made any attempt to expedite the case nor did they complain about the delay." The cases were reassigned to another assistant district attorney in October, 1988. On January 24, May 10, and July 7, 1989, this assistant district attorney sent letters to the judge, with copies to all defense counsel, advising the judge that the defendants' motions to suppress and at least one other motion were still under advisement. The letters requested that the assistant district attorney be notified by the judge's clerk (at a telephone number specified in the letters) of any decision on the motions. ³

On August 15, 1989, the judge filed written decisions denying the motions to suppress and other pending motions. In September of 1989, defense counsel informed the judge that they would be filing rule 36 motions to dismiss, and on September 28, 1989, rule 36 was tolled by agreement. On that day, additional expenses requested by the defendants for investigation were authorized, and a date of December 13, 1989, was set to hear the rule 36 motions. The motions were heard and thereafter denied and the cases were reported to the Appeals Court.

Because the defendants were not brought to trial within one year of the date of their arraignments, they are presumptively entitled to have the charges against them dismissed under rule 36 unless it is shown that the delay is justified by time periods specifically excludable under rule 36 or by other sufficient reason. See Barry v. Commonwealth, 390 Mass. 285, 291-294, 455 N.E.2d 437 (1983). After the deduction of periods of time that are to be specifically excluded under the rule, there is disagreement over the remaining number of days that need to be accounted for. ⁴ The motion judge concluded that far in excess of the remaining number of days was fairly excludable from rule 36 requirements.

In his written memorandum of decision on Joyce's motion to dismiss, ⁵ the motion judge found "no indication that defense counsel made any effort whatsoever to press resolution of the pending motions or the case in general. In other words, it would appear that one or more defense counsel in the present case[s] felt it tactically advantageous not to press for motions resolution and trial. If this were the case, the public interest would not be served by dismissing the present action."

In addition, the motion judge found that the defendants appear to have benefited from the delay. As to this consideration, the motion judge stated that "[i]t has been represented to this court that a key witness who was in the automobile with the defendants and the [complainant] before the alleged rape took place has now been located. This witness, it is said, will be helpful for the defense. Thus, it is difficult to assert that the defendant[§ have] been prejudiced by delay."

The motion judge further found that the defendants apparently were not prepared for trial. He found that "[a]s late as December 16, 1988, during a lobby conference with the session judge held at Suffolk County Superior Court, defense counsel filed a number of motions, including discovery motions and a motion to fund additional investigator's fees. It has been represented to this court that the funds were needed in order to locate a key witness who was believed to be outside the Commonwealth. Accordingly, it cannot be argued that the defendant[§ were] prepared for trial during this period or for some time following this, further supporting this court's conclusion that the defendant[s] not only acquiesced but actually may have benefited from much of the period of delay." The motion judge then concluded his decision as follows: "In summary, it is the finding of this court that the excludable days exceed the days the Commonwealth needed to justify. There is no injustice to the defendant[s] and the public interest will be served by bringing the defendant[s] to trial to answer the charges against [them]." We agree with the motion judge's analysis. ⁶

We note at the outset that rule 36, entitled "Case Management," is just that, a rule of case management. It is wholly separate from the defendants' constitutional right to a speedy trial. ⁷ As we indicated in Barry, supra, 390 Mass. at 295-296, 455 N.E.2d 437, rule 36 is primarily designed to assist in the administration of trial court dockets. In addition to periods of time specifically excluded by the rule, periods during which a defendant acquiesced in, is responsible for, or benefited from delay are also not counted. Reporters' Notes to Mass.R.Crim.P. 36, Mass.Ann.Laws, Rules of Criminal Procedure at 527 (1979). Barry, supra at 295, 455 N.E.2d 437. Commonwealth v. Farris, 390 Mass. 300, 305, 455 N.E.2d 433 (1983). Commonwealth v. Wysocki, 28 Mass.App.Ct. 45, 48, 546 N.E.2d 177 (1989).

We have also indicated that rule 36 places certain obligations on all parties involved, including the prosecution, the court, and defendants. Barry, supra, 390 Mass. at 296, 455 N.E.2d 437. We have specifically emphasized the obligation of defense counsel to object to delay. Id. at 296 n. 13, 455 N.E.2d 437. See Commonwealth v. Dias, 405 Mass. 131, 139, 539 N.E.2d 59 (1989) (defense counsel is required to object to delay). We have pointed out that defendants have a responsibility to "press their case through the criminal justice system." Barry, supra, 390 Mass. at 297, 455 N.E.2d 437. "If the rule is read to relieve defendants of the obligation to press their case through the criminal justice system, the public interest often will be thwarted by those defense counsel who decide that delay is the best defense tactic." Id. at 296-297, 455 N.E.2d 437. See Commonwealth v. McDonald, 21 Mass.App.Ct. 368, 373, 487 N.E.2d 224 (1986). We have also noted that dismissal will not be appropriate if a defendant is at least partially responsible for delay, Barry, supra, 390 Mass. at 297, 455 N.E.2d 437, particularly when the defendant has acquired some benefit as the result of the passage of time.

Consistent with these principles, when a defendant has not entered an objection to delay, he may be deemed to have acquiesced in the passage of time. Farris, supra, 390 Mass. at 305, 455 N.E.2d 433, and cases cited. Similarly, in appropriate circumstances, a disinterested attitude by a defendant in the progress of his case can permit a finding of acquiescence. These principles underpin the motion judge's analysis and, in our view, warranted his primary conclusion that the defendants...