Com. v. Lutoff

• Citation: 14 Mass.App.Ct. 434,440 N.E.2d 52
• Parties: COMMONWEALTH v. Robert J. LUTOFF.
• Decision Date: 15 September 1982
• Court: Appeals Court of Massachusetts

Page 52

440 N.E.2d 52

14 Mass.App.Ct. 434

COMMONWEALTH v. Robert J. LUTOFF.

Appeals Court of Massachusetts Essex.

Argued June 8, 1982.

Decided Sept. 15, 1982.

Jerry E. Benezra, Melrose, for defendant.

Lila Heideman, Asst. Dist. Atty., for the Commonwealth.

Before BROWN, ROSE and GREANEY, JJ.

GREANEY, Justice.

The defendant has appealed from jury convictions on two pairs of indictments charging him with burning a building and burning insured property. The indictments arose out of two fires, on November 18, 1974, and August 4, 1975, at the House of Lebanon, a restaurant in Gloucester owned by the defendant and his wife. ¹ The defendant contends that he has been deprived of his right to a speedy trial as required by the Sixth and Fourteenth Amendments to the United States Constitution and art. 11 of the Massachusetts Declaration of Rights. See Commonwealth v. Hanley, 337 Mass. 384, 387, 149 N.E.2d 608, cert. denied, 358 U.S. 850, 79 S.Ct. 79, 3 L.Ed.2d 85 (1958); Commonwealth v. Gove, 366 Mass. 351, 356 n.6, 320 N.E.2d 900 (1974). We review orders entered by different judges of the Superior Court denying two separate motions to dismiss the indictments for lack of speedy trial filed by the defendant on April 2, 1979, and May 9, 1980, respectively. Our review is conducted in light of the events at the trial.

The motion to dismiss filed on April 2, 1979 (first motion). This motion was heard on May 14, 1979, on affidavits filed by defense counsel and the prosecutor, and the testimony of two witnesses. Our facts are drawn from the judge's written findings, uncontroverted material contained in counsels' affidavits, ² and the docket entries.

The indictments in question (together with a fifth indictment, which was subsequently dismissed as duplicitous) were returned by an Essex County grand jury on September 15 and 16, 1976. The defendant was promptly arraigned on all five indictments and released on personal recognizance. Counsel for the defendant, Mr. George L. Sacco, seasonably secured various orders for discovery. On February 4, 1977, he wrote a letter to the criminal list clerk of the Essex County Superior Court (with a copy to the district attorney's office), requesting that the indictments be placed on the trial list for the second or third week of March, 1977. On February 10, 1977, the assistant district attorney assigned to prosecute the case, Mr. Thomas J. Barrett, advised Mr. Sacco by letter that there would be "no [trial] sitting in March and possibly none in April." Mr. Barrett stated, however, that since "your letter ... obvious[ly] indicat[es] you are ready for trial," we "will get your discovery motions answered shortly" and "[o]ur office will place [the case] on the trial list for the next session we do have."

On March 4, 1977, the defendant filed a motion for speedy trial on the ground "that any delay ... will cause him to suffer undue hardship and violate his rights under the United States Constitution and our State Constitution." This motion, however, was not marked for hearing. On June 10, 1977, the Commonwealth complied with the discovery orders. On June 23, 1977, Mr. Sacco was permitted to withdraw as counsel, the defendant was found indigent, and Mr. Geoffrey C. Packard of the Massachusetts Defenders Committee was appointed to represent him. On June 23, 1977, Mr. Packard spoke to Mr. Barrett and advised him that the case "would have to be tried rather than disposed of in some other manner." Counsel apparently agreed that, due to a crowded docket in July and the lack of sessions in August, the case would not appear on a trial list until September or October, 1977. The case, however, did not appear on any trial list during the remainder of 1977.

On February 17, 1978, the case was placed on a list in the "C" session of the Superior Court in Essex County, for the purpose of assigning a trial date. There, the case was set for trial on March 14, 1978. On that date, however, the Commonwealth failed to move for trial because Mr. Barrett was engaged in another criminal trial. On March 17, 1978, Mr. Packard withdrew as the defendant's counsel and Mr. Elliot M. Weinstein was appointed to succeed him. ³ On April 15, 1978, the "C" session was disbanded and all cases then pending on that session's docket, including the defendant's case, were restored to the regular docket.

On May 23, 1978, the case was again called for the purpose of setting a trial date. A judge of the Superior Court scheduled July 17, 1978, for trial. On that date, however, the case was not on the list, and it never appeared on any trial list thereafter. On April 2, 1979, the defendant moved to dismiss the indictments "because the Commonwealth has failed to afford a speedy trial ... [as] guaranteed ... by ... the United States Constitution and ... the Massachusetts Declaration of Rights."

After considering these facts, the judge found that the passage of thirty-two months since the return of the indictments was "certainly sufficient to trigger an inquiry into whether the defendant has been denied his constitutional right to a speedy trial." She further determined that the defendant had never requested a continuance, that the delay was due to "congestion of the criminal docket and the heavy caseload of the district attorney's office," and that "[t]he actions of the defendant have not caused the delay." The judge found, however, that the defendant had not shown that the delay had resulted in prejudice. She concluded that the lack of demonstrated prejudice outweighed the other three elements in the speedy trial analysis, discussed infra, and denied the motion. ⁴ The defendant seasonably objected to that order.

The motion to dismiss filed on May 9, 1980 (second motion). Following the denial of the first motion, more than a year passed without assignment of the case for trial. On May 9, 1980, the defendant moved again to dismiss the indictments because of deprivation of his constitutional right to a speedy trial. In this motion, the defendant alleged that the case was by then forty-four months old, that a material witness for the defense regarding the November, 1974, fire had died, and that an important witness regarding the August, 1975, fire had moved to California and lacked the means to return to Massachusetts to testify.

Another judge held a hearing on the motion on July 30, 1980. This judge considered the affidavits of counsel, ⁵ the findings made by the judge on the first motion, and the defendant's testimony. At the hearing, an assistant district attorney, Ms. Diane M. Kottmyer, indicated that the case had been assigned to her in January, 1980, after Mr. Barrett had left the district attorney's office. She stated that she had been unable to try the case because of commitments involving defendants who were already incarcerated. At the conclusion of the hearing the judge ruled from the bench that the defendant had not established prejudice. He found that other witnesses were available to testify to the facts which would have been addressed by the deceased witness, and that the defendant had failed to establish the relevance of the testimony of the California witness. He further stated his opinion that there had been no substantial change in circumstances since the denial of the first motion, "except that another year has gone by." The judge concluded that the motion should be denied, but added that the indictments would be dismissed unless they were tried in the September, 1980, session. Trial began on September 15 and ended on September 26, 1980.

The seminal United States Supreme Court case on the right to a speedy trial is, of course, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In that case, the Supreme Court formulated the now familiar four factors to be considered in determining whether a defendant has been deprived of his constitutional right to a speedy trial: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of the right, and (4) prejudice to the defendant resulting from the delay. Id. at 530-533, 92 S.Ct. at 2191-2193. The application of these factors requires a "balancing test, in which the conduct of both the prosecution and the defendant are weighed," with each case to be decided on an "ad hoc basis," after careful consideration of its particular facts. Id. at 530, 92 S.Ct. at 2191. Also pertinent is the rule of review that the subsidiary findings of fact made by the judges below are to be accepted absent clear error, but that their ultimate conclusions of law on constitutional questions, while entitled to deference, are open to reexamination. See Commonwealth v. Moon, 380 Mass. 751, ---, Mass.Adv.Sh. (1980) 1337, 1342, 405 N.E.2d 947, and cases cited; Commonwealth v. Angivoni, 383 Mass. 30, ---, Mass.Adv.Sh. (1981) 555, 558, 417 N.E.2d 422, and cases cited. Based on these principles, we analyze the facts of this case.

a. Length of delay. Since the defendant was not in custody prior to the return of the indictments on September 15 and 16, 1976, his right to a speedy trial attached on that date. United States v. Marion, 404 U.S. 307, 320-321, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971). Commonwealth v. Blaney, 5 Mass.App. 96, 97, 359 N.E.2d 958 (1977). The four-year delay prior to the commencement of trial on September 15, 1980, while not dispositive by itself, is unquestionably sufficient to require further inquiry whether the defendant was denied a speedy trial in violation of his constitutional right. See Commonwealth v. Horne, 362 Mass. 738, 739, 743, 291 N.E.2d 629 (1973) (forty-eight month delay); Commonwealth v. Gilbert, 366 Mass. 18, 21, 314 N.E.2d 111 (1974) (thirty-one month delay); Commonwealth v. Boyd, 367 Mass. 169, 179-180, 326 N.E.2d 320 (1975) (fourteen month delay); Commonwealth v. Beckett, 373 Mass. 329, 331, 366 N.E.2d 1252 (1977) (fifty-five month delay); Commonwealth v. Look, 379 Mass. 893, 898, 402 N.E.2d 470, cert. denied, ...