Com. v. Lewis

• Decision Date: 06 November 1981
• Citation: 12 Mass.App.Ct. 562,427 N.E.2d 934
• Parties: COMMONWEALTH v. Randolph LEWIS.
• Court: Appeals Court of Massachusetts

Page 934

427 N.E.2d 934

12 Mass.App.Ct. 562

COMMONWEALTH v. Randolph LEWIS.

Appeals Court of Massachusetts, Suffolk.

Argued Sept. 11, 1981.

Decided Nov. 6, 1981.

James D. St. Clair, Boston, (Robert D. Keefe, Boston, with him), for defendant.

James M. McDonough, Asst. Dist. Atty., for the Commonwealth.

Before GRANT, PERRETTA and KASS, JJ.

GRANT, Justice.

During the evening of April 19, 1976, Richard Poleet stopped his car on Eustis Street in Boston for a red light at the intersection of that street and Harrison Avenue. A crowd of youths had congregated on the sidewalks surrounding the intersection for the purpose of engaging in the vicious pastime known as "playing the lights." As the light changed and the Poleet car started forward, it was pelted with missiles thrown by members of the crowd. A brick went through the windshield of the car, and Poleet slumped over. His car lurched forward out of control and collided with and came to rest against another car which had entered the intersection from the opposite direction as the light changed. Some members of the crowd surged toward the two cars. Poleet was dragged from his car, robbed, and so severely beaten on the head that he ultimately died on May 30, 1978.

The defendant Lewis (defendant) was arrested the day after the incident and brought into the Roxbury Municipal Court. On April 27, 1976, he was indicted for armed assault with intent to murder, armed robbery, and assault and battery by means of a dangerous weapon. He was put to trial on those indictments in March of 1977, together with Stanley Young and Darrell Weaver, against whom there were companion indictments for the same offences. A jury convicted the defendant on all three indictments, ¹ and he appealed under G.L. c. 278, §§ 33A-33G, as in effect prior to St.1979, c. 346, §§ 1-3. ²

1. We consider first the defendant's motion to dismiss the indictments on the ground that "news releases and publicity tended to convince the public in general and the Grand Jury in particular, of the guilt of the defendant ... and tended to arouse animosity, indignation and prejudice toward and against the defendant, thus making it impossible for the defendant ... to be judged by a fair, impartial and unbiased Grand Jury." The motion was filed at the outset of the case but was referred to the trial judge for disposition. It was ultimately submitted on copies of articles which had appeared in Boston area newspapers following the incident, ³ together with a request for the issuance of summonses to the individual grand jurors so that they could be interrogated as to the possible effects of the publicity on them during the course of their deliberations. The motion and the request were denied after hearing.

There was no error for the reason, if no other, that the defendant was not entitled to be indicted by a grand jury which was free from bias or prejudice. Commonwealth v. Monahan, 349 Mass. 139, 155-156, 207 N.E.2d 29 (1965), and cases cited. See also Beck v. Washington, 369 U.S. 541, 546 82 S.Ct. 955, 958, 8 L.Ed.2d 98 (1962); Gorin v. United States, 313 F.2d 641, 645 (1st Cir. 1963), cert. denied, 379 U.S. 971, 85 S.Ct. 669, 13 L.Ed.2d 563 (1965); Martin v. Beto, 397 F.2d 741, 746 (5th Cir. 1968), cert. denied, 394 U.S. 906, 89 S.Ct. 1008, 22 L.Ed.2d 216 (1969). If there were any room for doubt on this point, it would be laid to rest by the later concession by counsel for the defendant, in the course of a discussion of whether the jury should be sequestered, that "the publicity has been eminently fair." See and compare United States v. Brien, 617 F.2d 299, 313 (1st Cir.), cert. denied, 446 U.S. 919, 100 S.Ct. 1854, 64 L.Ed.2d 273 (1980). ⁴

2. The defendant claims error in the denial of his pretrial motion to suppress the anticipated identification testimony of Kevin Walker and David Francis, ⁵ which was also heard and denied by the trial judge. There is no challenge to any of the carefully articulated subsidiary findings of fact filed by the judge or to any of his ultimate findings of fact or conclusions of law. See Commonwealth v. Moon, --- Mass. ---, --- - ---, Mass.Adv.Sh. (1980) 1337, 1341-1342, 405 N.E.2d 947, and cases cited. The only argument of possible constitutional dimensions which has been addressed to us is based on certain evidence at the suppression hearing, which is not reflected in the judge's findings, to the effect that all the photographs shown to Francis ⁶ were of persons suspected by the police of having participated in the incident of April 19. The difficulty with the contention is that there was no evidence at that hearing from which it could have been inferred that the police told or suggested to Francis that any of the photographs were of suspects or that Francis so believed.

There is no constitutional dimension to any of the other arguments which were addressed to the judge or which are now addressed to us. See and compare Commonwealth v. Gordon, 6 Mass.App. 230, 237, 374 N.E.2d 1228 (1978), and cases cited.

3. The defendant was held until trial in March of 1977 with bail set at $25,000, which was the figure that had been set when he was first brought into the Municipal Court on April 20, 1976. Between that date and May 13, 1976, there were three separate bail or bail review hearings in the Superior Court and one bail review hearing before a single justice of the Supreme Judicial Court, at each of which the defendant sought without success to be released on personal recognizance. Two further requests that the defendant be so released were denied by the Superior Court on November 30 and December 12, 1976. The defendant now claims for what appears to be the first time that the indictments against him should have been dismissed because he was not brought to trial within the six-month period contemplated by G.L. c. 277, § 72, as in effect prior to St.1979, c. 344, § 42.

Section 72 provided, with exceptions not here material, that "(w)hoever (was) held in custody upon an indictment (should), if he require(d) it, either be tried at the sitting of the court next after the expiration of six months from the time when he was imprisoned or be bailed upon his own recognizance ...." We think it clear from the plain language of the statute that the only relief to which a defendant was entitled if he were not tried within the six-month period was release on his own recognizance. The commonly understood remedy for a wrongful refusal of the Superior Court to grant such a release was a petition for habeas corpus brought in the single justice session of the Supreme Judicial Court. ⁷ So far as we have been able to ascertain, that remedy was not pursued in this case.

4. The defendant also argues that the indictments should have been dismissed for failure to grant him a speedy trial as guaranteed (a) by art. 11 of the Massachusetts Declaration of Rights and (b) by the Sixth Amendment of the United States Constitution, as expounded in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

It will be remembered that the defendant was arrested on April 20, 1976. The selection of the jury commenced on March 21, 1977, well within the one-year period now required by Mass.R.Crim.P. 36(b)(1)(C), 378 Mass. --- (1979). ⁸

The record reveals the history of the defendant's assertion of his right to speedy trial as well as the reasons for delay. On May 7, 1976, the defendant filed a routine motion for a speedy trial. He immediately began to work at cross purposes with himself by filing in the Supreme Judicial Court on May 11 a petition, supposedly under G.L. c. 211, § 3, under which he sought to establish his right to a probable cause hearing in the Municipal Court. That petition was dismissed by a single justice on May 13. The defendant filed an appeal to the full court which he later failed to prosecute.

On June 3, 1976, the defendant secured the allowance of the motion for a speedy trial which he had filed on May 7. His counsel was advised by the judge who allowed the motion that any assignment of a trial date would have to be secured from the judge sitting in the first criminal session. ⁹ The defendant appeared in that session on June 14, 1976, with the request that the case be assigned for trial that month. Counsel for Young advised the judge that he would not be ready for trial until the following month. The prosecutor advised the judge that the incident of April 19 was still under investigation by the grand jury and that there might well be indictments of additional persons not then before the court. ¹⁰ The prosecutor also advised the judge of Poleet's physical condition and of his (the prosecutor's) intention to seek indictments for murder, which would supplant the pending indictments, if Poleet should die. The judge advised all present that all the criminal sessions scheduled for July and August were blocked by older cases which had been specially assigned for trial. He set September 13, 1976, as the date for trial of the present case.

At least one of the other counsel involved in this case (it is not clear who) was unavailable on September 13. ¹¹ Not long thereafter counsel for the defendant became ensnared in a lengthy criminal trial which was not concluded until December 23, 1976. ¹² It was not until December 17 that the prosecutor and an associate of counsel for the defendant were able to file a written stipulation concerning the pretrial discovery which had previously been ordered by the court and to submit to it their remaining disputes on that subject.

On December 17 there was further consideration of a possible trial date. Associate counsel for the defendant requested January 17, 1976. That request had to be and was denied: because counsel for Weaver had been specially assigned for trial in the United States District Court on that date and to try a murder case in the Superior Court on January 24; because the prosecutor and counsel for Young were paired off against...