Com. v. Mattos

• Decision Date: 19 April 1989
• Parties: COMMONWEALTH v. Antonio MATTOS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1072

536 N.E.2d 1072

404 Mass. 672

COMMONWEALTH v. Antonio MATTOS.

Supreme Judicial Court of Massachusetts Bristol.

Argued Dec. 7, 1988.

Decided April 19, 1989.

William R. Hill, Jr., Committee for Public Counsel Services, for defendant.

Elspeth B. Cypher, Asst. Dist. Atty. (Dana A. Curhan, Asst. Dist. Atty. with her), for Com.

Before HENNESSEY, C.J., and ABRAHAMS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

The defendant and Antonio Vieira were indicted for the murder in the first degree of Forrest O. Burris. After a jury trial, the defendant was convicted of that crime on June 5, 1985, and sentenced to life imprisonment. The Commonwealth nolle prossed the indictment against Vieira on June 25, 1987. On appeal, the defendant claims that the trial judge erred in denying his motion to dismiss the indictment due to insufficient evidence before the grand jury and in denying his motion to dismiss under Mass.R.Crim.P. 36(b)(1)(C), 378 Mass. 909 (1979), based on delay in bringing him to trial. In addition, the defendant asserts that he was denied effective assistance of counsel in ways set forth below, and that this court should exercise its discretion under G.L. c. 278, § 33E (1986 ed.), to reverse his conviction on two grounds: (1) the judge's jury instruction on joint venture was inadequate, and (2) the prosecution allegedly relied on a joint venture theory involving the defendant and Vieira as joint venturers without proving Vieira's guilt. We affirm the conviction.

The defendant's first contention is that the evidence heard by the grand jury was insufficient to establish probable cause to arrest him and that, therefore, the judge erred in denying the defendant's motion to dismiss the indictment. We have held that, to justify an indictment, "at the very least the grand jury must hear sufficient evidence to establish the identity of the accused ... and probable cause to arrest him." Commonwealth v. O'Dell, 392 Mass. 445, 450, 466 N.E.2d 828 (1984), quoting Commonwealth v. McCarthy, 385 Mass. 160, 163, 430 N.E.2d 1195 (1982). The grand jury heard evidence that the defendant had at times in the past gone to the victim's apartment and demanded money, that on one occasion at the apartment he had beaten the victim and that the victim feared the defendant. The grand jury heard evidence that the defendant and Vieira had gone to the victim's apartment on the night of the murder for the purpose of getting the victim to give them money, and that the defendant and Vieira bought two bags of heroin the next morning for $60. Blood stains on the defendant's sneakers matched the victim's blood type, and hairs found in the victim's hands were consistent with both the defendant's and the victim's hair type. The defendant initially told the police he was wearing certain clothing on the night of the murder but later changed his story after the police confronted him with different clothing, taken from Vieira's house, that Vieira's mother had identified as having been worn by the defendant on the night in question. We are satisfied that that evidence was sufficient to meet the standard articulated in Commonwealth v. O'Dell, supra, and Commonwealth v. McCarthy, supra.

The defendant's next contention is that the judge should have dismissed the indictment because of the Commonwealth's delay in bringing him to trial in violation of Mass.R.Crim.P. 36(b)(1)(C). The defendant was arrested on August 19, 1983, and remained under arrest until his arraignment on August 30. He was brought to trial one year and 266 days later on May 23, 1985.

Rule 36(b), as it applies to this case, requires that a defendant shall be tried within twelve months after the "return day," and if the defendant is not tried within that period, as it may be extended by subdivision (b)(2) of the rule, the defendant "shall be entitled upon motion to a dismissal of the charges." Rule 36(b)(1). " 'Return Day' means the day upon which a defendant is ordered by summons to first appear or, if under arrest, does first appear before a court to answer to the charges against him, whichever is earlier." Mass.R.Crim.P. 2(b)(15), 378 Mass. 844 (1979). Since this defendant was under arrest, the date of his arraignment, August 30, 1983, was the return day, see Barry v. Commonwealth, 390 Mass. 285, 291, 455 N.E.2d 437 (1983), and he was entitled to be tried within twelve months of that date unless the Commonwealth established that further delay was justified. The burden of proof relative to justification is on the Commonwealth. Commonwealth v. Campbell, 401 Mass. 698, 702, 704, 519 N.E.2d 269 (1988). Barry v. Commonwealth, supra 390 Mass. at 291, 294, 455 N.E.2d 437.

The commencement of trial after the expiration of the twelve-month period may be justified not only by the provision in rule 36(b)(2) for "[e]xcluded [p]eriods," but also by the Commonwealth's demonstration that the defendant acquiesced in other periods of delay, or they benefited him or he was responsible for them. Commonwealth v. Campbell, supra 401 Mass. at 702, 519 N.E.2d 269, citing Commonwealth v. Farris, 390 Mass. 300, 305, 455 N.E.2d 433 (1983), and Barry v. Commonwealth, supra 390 Mass. at 295, 455 N.E.2d 437.

According to the docket entries, the defendant filed his rule 36(b) motion on May 22, 1985. The motion first came to the judge's attention on May 23, the date scheduled for trial. Contrary to Mass.R.Crim.P. 13(a)(2) and (4), no affidavit of the factual basis of the motion was attached, and the motion was not accompanied by a memorandum of law. The judge informed defense counsel that he would take the motion under advisement and that he would like "a brief and some proposed findings." Trial commenced that day, May 23, and continued until June 5. On June 4, the defendant filed a document entitled, "Suggested Findings on Defendant's Motion to Dismiss," requesting the judge to "find" that the defendant had not been brought to trial within twelve months after the return day "as required by Mass.R.Crim.P. 36(b)(1)," that the Commonwealth had produced nothing justifying the delay, that the delay was unjustified and that the motion to dismiss be allowed. Also, on June 4, First Assistant District Attorney Raymond P. Veary, Jr., who, according to the docket, alone represented the Commonwealth throughout the proceedings in the trial court, filed a memorandum in the Commonwealth's behalf in opposition to the motion to dismiss. That memorandum set forth detailed information concerning the procedural history of the case, focusing especially on the fact that the defendant had sought, agreed to, or benefited by various identified continuances.

On June 5, after the evidence had closed and before closing jury arguments, the judge, declining to rule on the motion to dismiss, said that he was still waiting for a brief from the defendant, that he was not going to delay sending the case to the jury, and that he would hold the motion under advisement until he received a brief and heard arguments. On June 6, after verdict and sentencing, the judge denied the motion to dismiss without hearing. He concluded that the "excluded periods ... far exceed[ed] the 266 days between the end of the twelve-month period and the commencement of the trial." It is clear that the judge relied almost entirely on the information supplied by the prosecutor's memorandum opposing the dismissal motion.

The defendant did not claim in the trial court and does not claim on appeal that the factual assertions in the prosecutor's memorandum relative to the defendant's requests for or agreements to continuances are untrue. He does not suggest that he now has or ever did have any evidence to controvert those assertions. Rather, the thrust of the defendant's argument is that there are "crucial disparities" between the docket entries and clerk's notes and minutes, on the one hand, and the prosecutor's unsworn memorandum, on the other. In the circumstances, he says, had he been permitted to argue his motion before the judge in keeping with the judge's promise, he could have successfully argued that the prosecutor's memorandum cannot enhance the docket entries and clerk's notes and minutes, and that those entries and notes and minutes are not enough to sustain the Commonwealth's burden to prove that the 266 days in excess of a one-year delay was justified.

We begin with the proposition that, because the defendant's motion was not accompanied by an affidavit bearing on the critical facts at issue and a memorandum of law as required by Mass.R.Crim.P. 13(a)(2) and (4), the defendant was not entitled to be heard on the motion. Furthermore, the argument that the defendant now makes, and presumably would have presented to the trial judge, lacks merit. It is true that, in many instances, the docket entries and clerk's notes and minutes are silent with respect to whether the defendant acquiesced in various continuances or benefited from them, and therefore, standing alone, they do not carry the Commonwealth's burden to establish justification for the delay. However, the prosecutor's memorandum, which in no way contradicts the docket entries and clerk's notes, supplements them with information relative to agreements concerning continuances. We have said that "the docket and minutes of the clerk are prima facie evidence of the facts recorded therein," Barry v. Commonwealth, 390 Mass. 285, 289, 455 N.E.2d 437 (1983), but we have never suggested that they may not be supplemented, or even rebutted, by other evidence. The judge was entitled to credit the prosecutor's uncontradicted representations and to conclude therefrom that the Commonwealth had proved that the trial delay beyond twelve months was justified.

The defendant also argues that it was reversible error for the judge to fail to decide the motion to dismiss before the defendant was placed in jeopardy. He points to Mass.R.Crim.P. 15, 378 Mass. 882 (1979), entitled "Interlocutory...