Com. v. Lauria
| Decision Date | 28 November 1990 |
| Docket Number | No. 90-P-247,90-P-247 |
| Citation | 29 Mass.App.Ct. 542,562 N.E.2d 1367 |
| Parties | COMMONWEALTH v. Michael LAURIA (and eleven companion cases 1 ). |
| Court | Appeals Court of Massachusetts |
Joseph James Balliro, Jr., for Michael Lauria.
John R. Campbell, for Edward Long.
Albert C. Bielitz, Jr., for Michael Joyce.
William F. Bloomer, Asst. Dist. Atty., for Com.
Before PERRETTA, KASS and GILLERMAN, JJ.
Lauria, Long and Joyce, charged with aggravated rape, 2 were not brought to trial within a year of their arraignments and, therefore, are presumptively entitled to dismissal of those charges in accordance with Mass.R.Crim.P. 36(b)(1), 378 Mass. 909 (1979), unless the Commonwealth justifies the delay. See Barry v. Commonwealth, 390 Mass. 285, 291-294, 455 N.E.2d 437 (1983); Commonwealth v. Campbell, 401 Mass. 698, 702, 519 N.E.2d 269 (1988). By agreement, the government and the defendants stopped the running of time under rule 36 as of September 28, 1989, thus, setting the stage for motions to dismiss under the rule by the defendants. Those motions were denied.
Upon the motion of the defendants and because a trial might be obviated, the Superior Court judge who acted on the motions to dismiss reported the case to us under Mass.R.Crim.P. 34, 378 Mass. 905 (1979), 3 for determination of the following question: Were there sufficient "excludable" days among the 554 which had elapsed between the defendants' arraignment and September 28, 1989, so that the intervening period, for purposes of rule 36, was one year or less?
Certain critical dates govern the counting exercise in which we are obliged to engage. Lauria was arraigned on March 8, 1988; Long and Joyce were arraigned on March 22, 1988. As subparagraph (b)(2)(E) of rule 36 allows "[a] reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run," we start counting from March 22, 1988; i.e., without exclusions, the trial of the defendants should have begun March 22, 1989. 4 By September 28, 1989, the Commonwealth was 189 days over the due date and needed to identify that number of "excludable" days.
For the first several months after the return day, the case took a relatively normal course. We set out important actions and events in tabular form:
Date of Nature of action or event Number of
Action days
excluded
by reason
of action
March 22, Trial judge establishes 4/12/88 as date for None
1988 pretrial conference report
April 12, Trial judge establishes 5/6/88 as date for filing None
1988 pretrial motions, 5/18/88 as date for hearing
pretrial motions, and 6/7/88 as trial date
May 6, 1988 Lauria's pretrial motions filed )
)
)
May 18, 1988 Hearing and action on various )
defense motions 5 )
Aug. 26, Hearings on motions to suppress ) 116
1988 days
eeeee to and to dismiss )
Aug. 29, )
1988
Sept. 28, The conclusion of the 30"day period allowed to a 30
1988 judge by Mass.R.Crim.P. 36(b)(2)(A)(vii) to hold days
a motion under advisement
At the conclusion of the thirty-day period for holding motions under advisement, the Commonwealth had 146 excludable days 6 to its credit, forty-three days shy of the needed 189 days.
Relatively soon after the conclusion of hearings on the suppression and dismissal motions, the Superior Court judge who had them under advisement (the "trial session judge") was transferred to another county and the papers in the case vanished. Three times in 1989, on January 24, May 10, and July 7, the assistant district attorney wrote to the trial session judge to remind him of the pending motions. On each occasion, the prosecutor sent a copy of the reminder notice to counsel for the defendants. Previously, on December 16, 1988, the assistant district attorney on the case had reminded the trial session judge of the pending severance and suppression motions during a lobby conference attended by all counsel. 7
Following the third written reminder notice to the trial session judge from the prosecutor, there ensued an intense and unsuccessful hunt for the missing court papers relating to the undecided motions. At the judge's request (presumably communicated to all parties), the Commonwealth on July 19, 1989, provided copies of the motions, accompanying memoranda of the parties, and a transcript of the motion hearing. So equipped, the trial session judge disposed of the pending pretrial motions within thirty days. Specifically, disposition of the last of the pretrial motions was entered on the docket on August 17, 1989.
The next event which occurred was a conference about the status of the case on September 28, 1989, among counsel and a second Superior Court judge (the "second judge"). 8 At that conference, defense counsel made known their intention to move for dismissal under rule 36 and the parties entered into their stipulation to toll the running of rule 36 time as of that date so that the motions might be filed, briefed, argued, and considered without charging the government with still more rule 36 time.
There is no dispute between the government and the defendants that the 146 days running from the first filing of pretrial motions (May 6, 1988) through thirty days after the conclusion of hearings (September 28, 1988) are deductible from the period following arraignment. 9 Excludability on those grounds is discussed in Commonwealth v. McDonald, 21 Mass.App.Ct. 368, 371-374, 487 N.E.2d 224 (1986). The second judge based his denial of the defendants' motions to dismiss fundamentally on the grounds that they had acquiesced in the delay which occurred after the trial session judge had taken the motions to sever and to suppress under advisement and, indeed, had benefited from that delay. Acquiescence in periods of delay by a defendant and benefit from periods of delay to the defendant are among the causes that extend the twelve-month period in which a defendant is to be brought to trial under rule 36. Barry v. Commonwealth, 390 Mass. at 295, 455 N.E.2d 437. Commonwealth v. Farris, 390 Mass. 300, 305, 455 N.E.2d 433 (1983). Commonwealth v. Campbell, 401 Mass. at 702, 519 N.E.2d 269. Commonwealth v. Mattos, 404 Mass. 672, 675, 536 N.E.2d 1072 (1989). Commonwealth v. McDonald, 21 Mass.App.Ct. at 374, 487 N.E.2d 224. Commonwealth v. Wysocki, 28 Mass.App.Ct. 45, 48, 546 N.E.2d 177 (1989). Reporters' Notes to Mass.R.Crim.P. 36, Mass.Ann.Laws, Rules of Criminal Procedure at 527 (1979). The focus of inquiry in the case, therefore, is whether the defendants, within the meaning of the rule, acquiesced in the delay from September 28, 1988, to September 28, 1989, or benefited from it.
Before examining the dispositive questions of acquiescence or benefit, we take a brief detour to consider whether in respect to Lauria the government was entitled to twenty-one excludable days (the second judge so ruled) because counsel for Lauria submitted a supplementary memorandum of law in support of Lauria's motion to suppress twenty-one days after the end of the hearings on the pretrial motions. If such a memorandum had been required or asked for, or if counsel had asked for time to submit such a memorandum or had otherwise indicated to the judge that further material was coming and that the judge should stay the process of decision, then Lauria would be chargeable with the delay. See Commonwealth v. McDonald, 21 Mass.App.Ct. at 372-374, 487 N.E.2d 224. Here, unlike the incomplete status of the motion in the McDonald case, the judge was not given to understand that more information was to come; on August 29, 1988, the motions to sever and suppress were fully documented and ripe for decision. In such circumstances, we do not think the unsolicited filing, pending decision, of a supplementary memorandum of law (which might assist the judge) provides a basis for computing an excludable period under Mass.R.Crim.P. 36(b)(2)(A)(v). Particularly in this case, when the memorandum was submitted during the thirty days allowed a judge under Mass.R.Crim.P. 36(b)(2)(A)(vii) to consider a motion, additional excludable days attributable to submission of the memorandum of law would involve a degree of double counting of excludable days.
We return to the question of acquiescence. Although the rule and the cases impose on defense counsel a burden to object to delays and to press the case through the criminal justice system, the primary responsibility for keeping a criminal case on track and moving rests with the court and the prosecution, who control the trial calendar. See Barry v. Commonwealth, 390 Mass. at 296 & n. 13, 455 N.E.2d 437; Commonwealth v. McCants, 20 Mass.App.Ct. 294, 295-296, 480 N.E.2d 25 (1985); Commonwealth v. McDonald, 21 Mass.App.Ct. at 373, 487 N.E.2d 224. A cogent reason for substituting rule-made speedy trial criteria for constitutional criteria described, notably, in Barker v. Wingo, 407 U.S. 514, 530-533, 92 S.Ct. 2182, 2191-2193, 33 L.Ed.2d 101 (1972), is that the public, as well as the accused, has an interest in speedy trials. Swift and certain justice give muscle to the deterrent effect...
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Com. v. Lauria
...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 corr......
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