Com. v. Marsh

• Decision Date: 29 November 1968
• Citation: 354 Mass. 713,242 N.E.2d 545
• Parties: COMMONWEALTH v. George L. MARSH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 545

242 N.E.2d 545

354 Mass. 713

COMMONWEALTH v. George L. MARSH.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued Oct. 7, 1968.

Decided Nov. 29, 1968.

Robert A. Novick, Boston (Reuben Goodman, Boston, with him) for defendant.

Richard W. Barry, First Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, CUTTER and REARDON, JJ.

WHITTEMORE, Justice.

1. The defendant has appealed under G.L. c. 278, §§ 33A--33G, from his conviction on October 27, 1967, on an indictment for rape committed August 22, 1965. The indictment was returned October 1, 1965, in the Superior Court in Norfolk County. The case was called for trial on July 5, 1967, but on that day the defendant defaulted. We need not decide the effect, in the circumstances, of the twenty-one months delay (October, 1965, to July, 1967) on the defendant's right to a speedy trial. See Bishop v. Commonwealth, 352 Mass. 258, 260, 225 N.E.2d 345 (two years 'plainly is more than a reasonable time'). Commonwealth v. McGrath, 348 Mass. 748, 205 N.E.2d 710 (nine months having elapsed, the defendant was entitled to a dismissal unless promptly tried).

The issue is whether, in view of the defendant's failure to present to the court before trial any of several motions for a speedy trial filed by him beginning July 6, 1966, there was a waiver of the right.

The docket and record show motions as follows: (1) 'Motion for Speedy Trial' filed July 6, 1966, reading, 'The Defendant * * * insists that his case be set down for speedy trial'; (2) 'Motion to Dismiss' filed September 8, 1966, 'on the grounds that he was denied his Constitutional right to a speedy trial'; (3) 'Motion to Dismiss' filed November 14, 1966, reciting the same ground; (4) 'Motion for Speedy Trial' filed March 17, 1967, moving 'that he be granted a speedy trial as provided by the Constitution(s) of the United States and the Commonwealth of Massachusetts.'

The only indication that any of the foregoing motions came before the court is in the trial transcript. Before the jury were empanelled on October 25, 1967, the defendant's then attorney said, 'Just one motion, your Honor, and this has been argued before. This is a motion to dismiss on the grounds that the defendant was denied a speedy trial. He was arraigned on October 4, 1965, and a motion for a speedy trial was filed in this court on June 30, 1966. ¹ Therefore, I would renew the motion at this time to dismiss the indictments against the defendant.' The trial judge denied the motion. There is no indication in the record or the original papers or the defendant's brief that any of the motions were brought before the court prior to October 25, 1967. The relevant assignment of error specifies the denial on October 25, 1967, of the 'Motion to Dismiss.' The defendant's brief assumes, as do we, that there was no prior hearing or court order.

We said in Commonwealth v. Hanley, 337 Mass. 384, 388, 149 N.E.2d 608, 611, 66 A.L.R.2d 222, 'We think that the full intent of the constitutional protection will be afforded by a rule that in the absence of a showing of circumstances which negative the implication, the failure to demand prompt trial implies a waiver of the right thereto.' ²

In our cases holding that the constitutional right has been denied, the issue of the effect of the mere filing of a motion has not arisen; in all the cases the defendants concerned were reasonably diligent in asserting their right to a speedy trial. In Commonwealth v. Green, 353 Mass. 687, 688--689, 234 N.E.2d 534, motions filed by the defendant came before the court and were acted on. ³ In Bishop v. Commonwealth, 352 Mass. 258, 259--260, 225 N.E.2d 345, 346, seasonable motions, one to withdraw the appeals (for a trial by a six man jury session) and transfer them to the Superior Court, and the second to dismiss, were blocked by notices from the clerk that the motions would not be heard because the Legislature had failed to make appropriate provision for such withdrawal and transfer or to provide funds for personnel for a court session to hear motions to dismiss. The petitioner 'made efforts (unsuccessful for the reasons stated) to have the appeals assigned for trial or the motions assigned for hearing before the Chief Justice of the District Courts.' In Commonwealth v. McGrath, 348 Mass. 748, 205 N.E.2d 710, the issue came to a reasonable resolution by a petition for a writ of habeas corpus (dismissed) and a subsequent direction by the judge for an inquiry of the prosecutor, at the defendant's urging, to ascertain whether the prosecutor would pay the costs of transportation from a Federal prison or, alternatively, dismiss the indictments. Following a negative answer, the defendant filed and secured a hearing on a motion either to dismiss or to order the District Attorney to pay such costs.

General Laws c. 277, § 72, assuring, with certain qualifications, that an unbailed prisoner shall have a trial within six months 'if he requires it' or be bailed on his own recognizance, contemplates a motion filed with the clerk which, because of the statute will come before a judge in due course. See G.L. c. 277, § 72A, as appearing in St.1965, c. 343, as to a request by a prisoner made to the Commissioner of Correction for prompt trial which he must forward to the court by certified mail.

Many of the decisions elsewhere which hold that a demand is necessary ⁴ indicate that the demand must be to the court. 57 A.L.R.2d 302 (Anno: Waiver or loss of accused's right to speedy trial). Pietch v. United States, 110 F.2d 817, 819 (10th Cir.), cert. den. 310 U.S. 648, 60 S.Ct. 1100, 84 L.Ed. 1414. Shepherd v. United States, 163 F.2d 974, 977 (8th Cir.) (a letter addressed to the United States Attorney held insufficient). Fowler v. Hunter, 164 F.2d 668, 670 (10th Cir.) (the demand must be addressed to the court in which the indictment is pending). United States v. Lustman, 258 F.2d 475 (2d Cir.). Wright v. State, 97 Ga.App. 653, 104 S.E.2d 158. State v. Couture, 156 Me. 231, 163 A.2d 646. State v. Smith, 10 N.J. 84, 89 A.2d 404. A few cases suggest that a demand of 'record' may be enough. McCandless v. District Court of Polk County, 245 Iowa 599, 61 N.W.2d 674. People v. Foster, 261 Mich. 247, 250, 246 N.W. 60. State v. McTague, 173 Minn. 153, 216 N.W. 787.

We hold that the defendant's demand, to negative the implication of waiver, must be so made as to show a desire for prompt trial and reasonable efforts to obtain it. In this case the defendant's motions should have been promptly presented to a judge. ⁵ All concerned were entitled to view the mere filing of a motion as only a preliminary step to presenting the substance of the matter to the court.

The defendant in his brief appears to recognize the need of court action. He contends that the lack of a hearing was the fault of the District Attorney and that only he could or should have brought the motions to the attention of the court. This is a mistaken and unjustified view. Even though there is no regular criminal motion list, any motion may be brought to the attention of a judge. General Laws c. 278, § 1, expressly provides for the addition of cases to the trial list on motion of defendants. ⁶

None of our cases warrants the conclusion that what was done in this case would suffice. Defendants who are interested only in laying the groundwork for dismissal in the event of delay should not prevail merely because a motion had previously been filed. Where counsel files motions for trial, but does not seek action on them, it is a reasonable inference that the defendant prefers no trial, and hopes he may escape it because of delay due to crowded dockets or other cause. Waiver of the right to a speedy trial is implicit in such inaction.

2. There appears to be no reversible error in the application of the rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. ⁷

(a) The defendant on the evening after the rape, while being held at a Boston police station on an unrelated charge, was addressed by a police lieutenant who in an interview with the victim of the rape had obtained her identification of a photograph of the defendant. The officer intended to seek arrest warrants against the defendant. He asked the defendant if he was the operator of an automobile, whose passengers had included the victim, which had been approached by a police officer in Brookline when it was stopped there the previous evening. The defendant answered that he was. The officer then told him that he was 'a red-hot suspect in a rape case' and, according to his testimony, gave the required constitutional warnings. Testimony as to the prior question and answer was admitted.

The defendant took the stand, testified that he had operated the car and had been at the scene of the rape, and that he was not one of the rapists. Except on that crucial issue, his testimony confirmed that of the victim. His presence in the automobile was testified to by the Brookline officer. We hold that the evidence of the prewarning admission of presence in the car was 'harmless beyond a reasonable doubt.' Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705. Indeed, willing acknowledgement by the defendant of his presence in the car, if of any significance, would tend to lend credence to his testimony that he refrained from attack. See, as to the reasonable application of the Miranda rule, Commonwealth v. Wilbur, 353 Mass. 376, 382--383, 231 N.E.2d 919; COMMONWEALTH V. FISHER, MASS., 238 N.E.2D 525^A.

(b) After answering several questions following the warning, the defendant said he did not wish to answer any more questions until he had conferred with his attorney. As the interrogating officer was conducting the defendant back to his cell, the officer asked him if the undershorts he was then wearing were the ones he had worn the night before. The defendant relied affirmatively, saying he had worn then for about a...