Com. v. Ludwig

• Decision Date: 02 April 1976
• Citation: 345 N.E.2d 386,370 Mass. 31
• Parties: COMMONWEALTH v. Richard I. LUDWIG
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 386

345 N.E.2d 386

370 Mass. 31

COMMONWEALTH

v. Richard I. LUDWIG

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Feb. 2, 1976.

Decided April 2, 1976.

Robert W. Hagopian, Cambridge, for defendant.

Robert B. Russell, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and REARDON, QUIRICO, BRAUCHER and WILKINS, JJ.

REARDON, Justice.

The defendant appeals from a finding of guilty at a jury waived trial in the Superior Court on an indictment charging him with larceny. The appeal is pursuant to G.L. c. 278, §§ 33A--33G.

The following facts are pertinent. On September 25, 1973, complaints charging the defendant with larceny and conspiracy to commit larceny were issued by the District Court of Western Norfolk. To these charges he pleaded not guilty on the following day. On November 28, 1973, the Commonwealth and the defendant announced themselves ready for trial and witnesses were sworn. The defendant had filed a motion for trial by jury and sought a ruling on the motion, whereupon the Commonwealth requested a continuance of the case until February 6, 1974. The continuance was granted over the defendant's objection, and there was no ruling on the defendant's motion. Following some intermediate proceedings in the single justice session of this court the defendant's case was reached for trial again on February 19, 1974, at which time the defendant moved that the complaints be dismissed with prejudice on grounds of double jeopardy and denial of a speedy trial. This motion was allowed by the District Court judge on February 21. On May 28, 1974, the defendant was indicted by the Norfolk County grand jury for the identical crimes with which he had been charged in the District Court. He was arraigned on June 6, 1974, and he filed a motion to dismiss on June 11, 1974, based on a double jeopardy defense. This motion was denied on September 19, 1974, and a motion for reconsideration was denied on October 30, 1974. To both of these actions the defendant took exception. On December 11, 1974, the defendant again filed a motion to dismiss on the grounds of denial of a speedy trial and prosecutorial misconduct. This motion was denied after hearing on January 16, 1975, and the defendant duly excepted. The trial proceeded jury waived and the judge entered a finding of guilty against the defendant on January 21, 1975.

The defendant alleges here in his assignments of error that the denial of his motion to dismiss based on the defense of double jeopardy was error, as was the denial of his motion based on the denial of a speedy trial and on prosecutorial misconduct.

As to the denial of his motion based on double jeopardy there was no error. A defendant is not put in 'jeopardy' within the meaning of the constitutional prohibition until he 'is put to trial before the trier of the facts, whether the trier be a jury or a judge.' United States V. Jorn,400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971). As to the defendant's November 28, 1973, appearance in the District Court, while witnesses had been sworn none had testified, and it is equally clear that the trial had not commenced. 'In the case of a jury trial, jeopardy attaches when a jury is empaneled and sworn. . . . In a nonjury trial, jeopardy attaches when the court begins to hear evidence.' Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975). See Commonwealth v. Brandano, 359 Mass. 332, 334--335, 269 N.E.2d 84 (1971); Commonwealth v. Ballou, 350 Mass. 751, 217 N.E.2d 187 (1966), cert. denied, 385 U.S. 1031, 87 S.Ct. 760, 17 L.Ed.2d 679 (1967). In a similar fashion no evidentiary hearing took place in the District Court in February, 1974, when the defendant's case was called again for trial, and the defendant thus was not put in prior jeopardy then.

The defendant's assertion that he was denied his right to a speedy trial raises other issues. On November 28, 1973, the defendant appeared in the District Court ready for trial but the judge instead continued the case over the defendant's objections to February 6, 1974, despite G.L. c. 276, § 35, which prohibits the granting of delays in excess of 'ten days at any one time against the objection of the defendant.' The defendant's motion to dismiss, when his case was reached for trial again on February 19, 1974, was based on two grounds, double jeopardy and denial of a speedy trial. The judge, in allowing the motion, did not specify the grounds on which he was basing his decision. As we have indicated above, nothing occurred in the District Court proceedings which would have warranted or supported a decision that the complaints in that court had to be dismissed on double jeopardy grounds. However, given the violation of the statutory prohibition of G.L. c. 276, § 35, a decision to dismiss on speedy trial grounds could have been warranted in the circumstances of this case. ¹ Cf. Commonwealth v. Thomas, 353 Mass. 429, 431--432, 233 N.E.2d 25 (1967); Commonwealth v. Xiarhos, --- Mass.App. ---, --- ^a, 310 N.E.2d 616 (1974). The District Court had jurisdiction to try the cases and acquit and, when presented with the motion to dismiss the complaints, properly could consider and rule on them. Although the judge did not specify the grounds for dismissal, we conclude that the dismissal 'with prejudice' implied the findings of fact necessary to support his action on speedy trial grounds and that such findings were permissible based on the evidence in these cases.

Having decided that the dismissal of the complaints in the District Court properly can be treated as a dismissal based on the denial of the right to a speedy trial, the question remains as to the effect of...