Com. v. Loftis

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: SPIEGEL
• Citation: 281 N.E.2d 258,361 Mass. 545
• Parties: COMMONWEALTH v. Anthony H. LOFTIS.
• Decision Date: 06 April 1972

Page 258

281 N.E.2d 258 361 Mass. 545 COMMONWEALTH
v.
Anthony H. LOFTIS. Supreme Judicial Court of Massachusetts, Norfolk. Argued Feb. 7, 1972.
Decided April 6, 1972.

[361 Mass. 546]

Page 259

Robert V. Greco, Roslindale (Reuben Goodman, Boston, with him), for defendant.

John P. Connor, Jr., Asst. Dist. Atty., for the Commonwealth.

Before [361 Mass. 545] CUTTER, SPIEGEL, REARDON and QUIRICO, JJ.

[361 Mass. 546] SPIEGEL, Justice.

The defendant was tried and found guilty on three indictments charging him with breaking and entering with intent to commit larceny (46861) and with unarmed robbery (46862--46863). ¹ These cases are before us on the defendant's appeal under the provisions of G.L. c. 278, §§ 33A--33G. We treat with the two assignments of error argued by the defendant.

1. The defendant first contends that his motion to dismiss should have been granted since he was not tried within six months of the receipt of his application for a speedy trial pursuant to G.L. c. 277, § 72A. ² We summarize[361 Mass. 547] the events relevant to the defendant's contention.

On October 9, 1970, the defendant was arraigned on indictments 46860--46863 and two unrelated indictments (45268--45269). Defence counsel stated that because investigation would require a great deal of time he would not be prepared to try these cases in this session.

On October 29, 1970, the Commonwealth requested that indictments 46860--46863 be placed on the trial list for specially assigned. The trial judge was informed that defence counsel was ill, that he had not yet interviewed

Page 260

the defendant, and that his substitute counsel was not in a position to consent to the continuance. The judge thereupon asked the Commonwealth whether it could, in fairness to the public, move for a continuance until the next scheduled criminal session in February, 1971, without the consent of the defendant. The Commonwealth so moved.

On December 8, 1970, the defendant's application for a speedy trial was received by the Norfolk County clerk.

A criminal session was subsequently scheduled in Norfolk County for January, 1971. On January 6, 1971 (all dates hereafter are 1971), indictments 46860--46863 and 45268--45269 (the two unrelated indictments) were called and, upon defence counsel's request, set down for the next trial session in February. Defence counsel represented at this time that he might request an independent expert fingerprint analysis. The judge stated that by January 25 he expected to hear any motions concerning the fingerprints and another matter involving [361 Mass. 548] out of State alibi witnesses. No motions were filed or argued on January 25.

On February 3 the cases ³ were called for trial. The Commonwealth stated that it was prepared for trial, and the cases were placed on the list for February 8.

On February 8 the Commonwealth again stated that it was ready for trial. Defence counsel at this time presented motions for an independent fingerprint analysis and for identification procedures 'used' by the Commonwealth.

The judge was obviously concerned with the status of the speedy trial motion, and asked whether the defendant would state in open court that a continuance from February to April would be on his motion without prejudice to the Commonwealth. Defence counsel, however, was unwilling to do this. The judge then stated: 'We will put it on for second call and reconsider your position. Frankly, I realize that you have a problem but you place the Court in an impossible position. You need time for investigation. At the same time you don't want to move for a continuance. The Commonwealth is ready for trial, I assume?' At the second call, defence counsel agreed that these matters might be set down for trial, but would not commit himself to a date which would be convenient for him. Eventually, by agreement of the parties and with the judge's consent, all of the indictments were set down for February 18, at which time indicmtents 45268--45269 would be tried and discussion would then be held on the progress of the other charges.

On February 18, however, only indictments 46860--46863 were called. Defence counsel pointed out that the Commonwealth had promised to proceed first on indictments 45268--45269. These were then placed on the trial [361 Mass. 549] list with the notation that the parties be prepared to proceed on twenty-four hours notice.

On April 5, 6 and 7 all six indictments were called but no trial was held. ⁴ On April 12, the defendant pleaded guilty on indictments 45268--45269. Indictments 46860--46863 were not called again until June 8, when the defendant moved to dismiss them. On July 1, the motion was denied. The trial commenced on July 20.

Our examination of the transcripts...