Com. v. McCants, 87-543

• Decision Date: 26 July 1988
• Docket Number: No. 87-543,87-543
• Parties: COMMONWEALTH v. Owen McCANTS.
• Court: Appeals Court of Massachusetts

Page 15

522 N.E.2d 15

25 Mass.App.Ct. 735

COMMONWEALTH v. Owen McCANTS.

No. 87-543.

Appeals Court of Massachusetts,

Suffolk.

Argued Nov. 6, 1987.

Decided May 3, 1988.

Further Appellate Review Denied July 26, 1988.

John E. Conwell, Boston, for defendant.

Daniel P. Napolitano, Asst. Dist. Atty., for Comm.

Before GRANT, DREBEN and SMITH, JJ.

SMITH, Justice.

As a result of two separate but closely related incidents that occurred on October 18 and 19, 1982, the defendant was charged with various crimes. In regard to the events that occurred on October 18, the defendant was charged with assault with intent to rape, assault and battery by means of a dangerous weapon, kidnapping, and indecent assault and battery on a person who had attained the age of fourteen. For the October 19 incident, he was charged with assault and battery, assault by means of a dangerous weapon, attempted kidnapping, and possession of a dangerous weapon while committing a breach of the peace. After a jury trial, he was convicted on the indictments based on the October 19 events and acquitted on the other indictments.

The defendant raises several issues on appeal. They include (1) denial of his motion to dismiss based on lack of speedy trial, (2) denial of a motion in limine, (3) denial of a motion to sever the trial of the October 18 indictments from the trial of the October 19 indictments, (4) alleged erroneous jury instructions, and (5) alleged errors in sentencing.

1. Denial of motion to dismiss the indictments. The defendant filed a motion to dismiss all the indictments because of an alleged violation of Mass.R.Crim.P. 36, 378 Mass. 909 (1979). After a hearing, a Superior Court judge denied the motion, and the defendant claims error.

"Rule 36(b) provides that, after a transitional period not applicable to this case, a defendant 'shall be tried within twelve months after the return day,' and if the defendant is not brought to trial within that period, as extended by subdivision (b)(2) of the rule, the defendant 'shall be entitled upon motion to a dismissal of the charges.' ... [T]he twelve-month period provided by rule 36(b) is extended not only by subsection (b)(2) providing for 'excluded periods,' but also by periods of delay in which a defendant acquiesces, for which he is responsible, or from which he benefits." Commonwealth v. Campbell, 401 Mass. 698, 702, 519 N.E.2d 269 (1988).

The return day in this case was December 23, 1982, the day that the defendant was arraigned. See Mass.R.Crim.P. 2(b)(15), 378 Mass. 844 (1979). The defendant was not brought to trial until February 24, 1986. He obviously made out a prima facie case of a violation of rule 36(b), and dismissal was mandatory unless the Commonwealth could sufficiently justify the delay. Barry v. Commonwealth, 390 Mass. 285, 291, 455 N.E.2d 437 (1983). See also Commonwealth v. Look, 379 Mass. 893, 898-899 n. 2, 402 N.E.2d 470, cert. denied, 449 U.S. 827, 101 S.Ct. 91, 66 L.Ed.2d 31 (1980). The judge found that the Commonwealth had sustained its burden. The defendant argues that the Commonwealth failed to justify a sufficient number of days to avoid a violation of rule 36(b).

We summarize the lengthy and complicated procedural history as it relates to the defendant's motion. That history includes two earlier motions to dismiss the indictments based on alleged violations of rule 36 and an appeal to this court by the Commonwealth from an adverse decision on the defendant's second motion.

On February 24, 1984, some fourteen months after the return day, the defendant filed his first motion to dismiss the indictments, alleging a violation of rule 36(b). On April 13, 1984, a Superior Court judge (first motion judge) denied the motion, ruling that the Commonwealth had justified a sufficient number of excludable days to extend the twelve-month time limit.

On June 1, 1984, the defendant filed his second motion to dismiss the indictments, claiming once again a violation of rule 36. The matter was heard by a different Superior Court judge (second motion judge). He ruled, over the prosecutor's objections, that the first motion judge had intended to total all of the excludable days up to February 24, 1984 (the date that the first motion to dismiss had been filed). The second motion judge, therefore, started his count from February 24, 1984. He determined that ninety-nine days had expired from that date to June 1, 1984, the date on which the second motion to dismiss had been filed. He ruled that the Commonwealth had failed to justify a sufficient number of excludable days to extend the one-year limit set out in rule 36(b) and allowed the defendant's motion to dismiss the indictments.

The Commonwealth appealed that decision to this court, pursuant to Mass.R.Crim.P. 15(b), 378 Mass. 883 (1979). On June 28, 1985, we reversed the second motion judge's decision, vacated his order dismissing the indictments, and remanded the case to the Superior Court. See Commonwealth v. McCants, 20 Mass.App.Ct. 294, 480 N.E.2d 25 (1985).

In our decision we disagreed with the second motion judge's determination that the first motion judge had considered and calculated the entire number of excludable days prior to February 24, 1984. The court said, "Examination of the first motion judge's memorandum of decision and order discloses ... that [he] did not consider the more debatable exclusion periods and, understandably, calculated those exclusions which, under the text of the rule, qualified readily...." Id. at 296, 480 N.E.2d 25. The court, therefore, determined that the entire period from the return date (December 23, 1982) was open for its examination to determine if there were any excludable days not used in the calculations made by the first motion judge.

From that examination we observed that the first motion judge had not considered those periods of delay represented by continuances requested, agreed to, or acquiesced in by defense counsel, but not shown on the record to have been authorized or agreed to by the defendant. We held that continuances "acceded to by [defense] counsel" should reasonably be treated as excluded from the one-year limit even if the defendant had not "explicitly consented to the delay or instructed [his] attorney to obtain it." Id. at 299, 480 N.E.2d 25. In our examination of the dockets and transcripts we identified at least five such continuances, none of which had been considered by either motion judge. We ruled that "[t]he aggregate of easily identifiable days of continuance which [the defendant's] lawyers asked for or agreed to were ninety-eight." Id. at 299, 480 N.E.2d 25. That number of excludable days, we concluded, coupled with other excludable periods, was sufficient to extend the one-year limit. Therefore, we reversed the second motion judge's decision allowing the defendant's motion.

Subsequently, the defendant filed an application for leave to obtain further appellate review by the Supreme Judicial Court. Mass.R.A.P. 27.1, 365 Mass. 875 (1974). That application for review was denied, 396 Mass. 1102 (1985), and on October 7, 1985, our rescript was filed in the Superior Court.

On December 6, 1985, the defendant filed his third motion to dismiss the indictments based on alleged violations of rule 36(b) and (c). The matter came before the same Superior Court judge who had previously denied the defendant's first motion to dismiss the indictments. Hereafter he will be designated as the third motion judge. Starting on December 9, 1985, that judge held an evidentiary hearing on the motion, concluding the hearings on January 8, 1986. On January 27, 1986, he denied the motion.

In a memorandum that accompanied his decision, the third motion judge observed that the court in McCants had not attempted to determine all the excludable periods that may have occurred prior to the filing of the second motion to dismiss the indictments. His examination of the record, which included docket entries and a partial transcript, showed that defense counsel had agreed to a continuance of the defendant's trial from January 27, 1983, to March 21, 1983, and that that period had not been excluded by either this court or any motion judge, including himself. He ruled that the period was excludable. He concluded that a calculation of all the excludable periods showed that the Commonwealth had justified a sufficient number of days to extend the twelve-month period set out in rule 36(b) past December 6, 1985, the date that the third motion to dismiss the indictments was filed.

(a) The defendant argues, on appeal, that the judge should not have excluded the January to March continuance because the defendant himself had not agreed to it. The argument that continuances agreed to by counsel are not excludable unless the defendant specifically and explicitly consented to the delay or instructed the attorney to obtain it was emphatically rejected in Commonwealth v. McCants, supra at 299-300, 480 N.E.2d 25.

The defendant also claims that we in our McCants decision counted the continuance of January 27 as an excludable period. However, an examination of that decision shows that we identified by specific dates each period of continuance that we excluded. The period represented by the January 27 continuance was clearly not excluded in our decision.

The defendant also challenges the third motion judge's determination that the total of all the excludable days was sufficient to extend the one-year limit to a period beyond the December 6, 1985, date.

At the hearing before the third motion judge, the parties stipulated that 1,080 days had passed from the return day to December 6, 1985, the date that the instant motion was filed. As a result of an examination of the materials before us and the McCants decision itself, we conclude that the total number of excludable days is 795 days. ¹ When that figure is subtracted from 1,080 days, the difference is 285 days. Therefore, the Commonwealth, at...