Com. v. McDonald

• Decision Date: 02 January 1986
• Citation: 21 Mass.App.Ct. 368,487 N.E.2d 224
• Parties: COMMONWEALTH v. Paul McDONALD.
• Court: Appeals Court of Massachusetts

Page 224

487 N.E.2d 224

21 Mass.App.Ct. 368

COMMONWEALTH v. Paul McDONALD.

Appeals Court of Massachusetts,

Hampden.

Argued Oct. 9, 1985.

Decided Jan. 2, 1986.

Arlene Beth Marcus, Boston, for the defendant.

Brett J. Vottero, Asst. Dist. Atty., for Com.

Before GREANEY, C.J., and PERRETTA and KASS, JJ.

KASS, Justice.

Although rule 36 of the Massachusetts Rules of Criminal Procedure, 378 Mass. 909 (1979), is "designed in some measure to operate mechanically," Barry v. Commonwealth, 390 Mass. 285, 292, 455 N.E.2d 437 (1983), its application continues to disclose bugs in the machinery. Here we confront a question left open in Barry: how shall delays attributable to the pendency of pretrial motions be calculated? Barry v. Commonwealth, supra at 294-295, 455 N.E.2d 437. See also Commonwealth v. Moore, 20 Mass.App. 1, 5 n.7, 477 N.E.2d 1033 (1985).

The motion in the instant case was not brought forward for hearing until ten months after it was filed. That same motion spawned the remaining issues on appeal: that the defendant was entitled to dismissal of the indictments against him by reason of hypnotically induced amnesia, and that he was wrongly refused financial assistance of the Commonwealth to bring from Missouri the psychiatrist who had subjected the defendant to hypnosis.

McDonald, the defendant, was convicted after a jury-waived trial of armed assault with intent to murder (G.L. c. 265, § 18), carrying a firearm without lawful authority (G.L. c. 269, § 10[a] ), and assault by means of a dangerous weapon (G.L. c. 265, § 15B). The defendant's troubles began as he sought entry on February 1, 1982, to the District Courthouse in Holyoke. A security guard, Clark Wall, passed a metal detector over the defendant and obliged him to disgorge a knife and a box of .22 caliber bullets. Wall asked the defendant if he had a firearm identification card (G.L. c. 140, § 129B). The defendant's reaction was to hotfoot it out of the courthouse. Wall gave chase. The defendant drew a handgun and ordered Wall to freeze. Wall froze. At a distance of about six feet from the defendant, Wall twice heard a click. After the second apparent misfire, the defendant resumed his flight and Wall resumed pursuit. Wall saw the defendant try to dispose of the handgun and its holster down a sewer catch basin. Police, in response to a radio transmission by Wall, came upon the scene and arrested the defendant.

At McDonald's arraignment the judge ordered the entry of pleas of not guilty and, acting under G.L. c. 123, § 15, ordered him to M.C.I., Bridgewater, for mental examination to determine his criminal responsibility and his competence to stand trial. With a view to diagnosing whether McDonald's disorder was a fugue ¹ or multiple personality, Dr. Bruce Harry, a psychiatrist at Bridgewater, placed him under hypnosis. The interview did not touch on the criminal episode which had landed the defendant in Bridgewater. At his trial, McDonald testified that he remembered nothing of that episode or his subsequent arrest.

1. Speedy trial. Trial in this case began October 24, 1983, a date nineteen months or 573 days after arraignment, which had occurred March 30, 1982. Facially, there had been a violation of Mass.R.Crim.P. 36(b)(1)(C), 378 Mass. 910 (1979), which provides that a defendant shall be brought to trial within twelve months of arraignment. See Commonwealth v. McCants, 20 Mass.App. 294, 295, 480 N.E.2d 25 (1985), and cases cited. Unless events occurred which, under the rule, tolled the running of the one-year period for at least 208 days, the defendant was entitled to dismissal of the indictments laid against him. Ibid.

In denying the first motion to dismiss under rule 36, the judge concentrated on the long pendency of the defendant's pretrial motion to dismiss. ² As a first order of business, we do so as well, because if the eleven months (337) days between filing and disposition were "excludable" in counting a year for purposes of the rule, then McDonald was timely brought to trial. ³ The specific ground which the judge gave for denying the motion was that the one-year limit of rule 36 had been tolled by subparagraph (b)(2)(A)(v) of the rule, a provision which excludes "delay resulting from hearings on pretrial motions" from computation of the one year in which trial must commence.

In Barry v. Commonwealth, 390 Mass. at 294-295, 455 N.E.2d 437, the court mentioned three methods by which the boundaries of delay under rule 36(b)(2)(A)(v) might be set: first, the actual days of hearings; second, the period from the filing of the motion until the conclusion of the hearing, the Federal standard; ⁴ or third, the period "from the date on which the request for hearing on the pretrial motion is filed[,] or, if no such request is filed, from the date the hearing is ordered, until the conclusion of the hearing." The last standard is that which is suggested in the Reporters' Notes to Mass.R.Crim.P. 36, Mass.Ann.Laws, Rules of Criminal Procedure at 528 (Law.Co-op. [1979] ).

None of those approaches quite fits the realities which attend the pretrial motions in this case. (Else we should take the Reporters' Notes as an influential guide). As initially filed on August 4, 1982, the defendant's motion set forth that on the preceding March 16th, the defendant "was the subject of a hypnotic interview" and that "the hypnotic interview has violated his Constitutional Rights under Article IV, V, VI and XIV and under the Massachusetts Constitution, Article 11, 12 and 14." The motion concluded, "The defendant requests ... the right to file briefs on this matter after receipt of the requested documents from Bridgewater State Hospital." There was no affidavit in support of the motion, as required by Mass.R.Crim.P. 13(a)(2), 378 Mass. 871 (1979).

In view of the absence of a supporting affidavit, which caused the motion to dismiss to be incomplete, the clerk of the Superior Court was not in a position to schedule the motion for hearing. See Mass.R.Crim.P. 13(d)(2)(A), 378 Mass. 873 (1979), which requires the clerk to schedule a hearing on a pretrial motion within seven days after it is filed. As for the prosecution, it had reason to think that any steps it might take to press for a hearing on the motion would have been met by a defense assertion that it was still hunting information to include in a suitable supporting affidavit. That impression was enhanced by the paragraph in the motion which contemplated a supporting memorandum once defense counsel learned more about what had transpired at Bridgewater.

The record is murky as to the activity of the parties between August 4, 1982, and May 20, 1983, when defense counsel finally filed an affidavit (that affidavit does not appear in the record appendix) in support of the motion to dismiss. We are able to infer from the docket and from the transcript of a motion hearing held on May 26 and 27, 1983, that there were continuing, albeit sporadic, efforts by defense counsel to learn more about McDonald's examinations at Bridgewater. To those efforts, the prosecution and successive judges seem to have lent modest support.

On May 24, 1983, i.e., promptly after defense counsel had made an attempt to complete his motion to dismiss by filing an affidavit, the Commonwealth moved to strike that motion. The motion to strike was allowed three days later, on May 27, 1983, without prejudice to the defendant's filing a like motion, supported by sufficient affidavits and a memorandum of law ⁵ within thirty days. Defense counsel did file a fresh motion to dismiss on June 24, 1983. It said the defendant had no memory of the events before, during, or after the criminal episode which underlay his indictment. His amnesia, the motion said, was a consequence of the defendant's interview under hypnosis. Accordingly, the motion went on, the defendant could not assist his counsel in preparing a defense and, therefore, he was deprived of his constitutional right to have the assistance of counsel. That second motion was denied after hearing on July 7, 1983.

Had the first motion to dismiss been a completed motion, i.e., accompanied by one or more affidavits (as Mass.R.Crim.P. 13[a] requires) and the promised memorandum of law, we think the prosecution and the trial court would have had some responsibility to bring it up for a hearing and disposition. Those players in the judicial process cannot absolve themselves of their burden to make rule 36 work by hiding behind dilatory conduct of defense counsel--if that is all that is involved. See Barry v. Commonwealth, 390 Mass. at 296, 455 N.E.2d 437; Commonwealth v. Moore, 20 Mass.App. at 4, 477 N.E.2d 1033. We take that to be the significance of the difference in text between rule 36(b)(2)(A)(v) and its Federal analog, 18 U.S.C. § 3161[h](1)(F) (1982). ⁶ The heavier burden to "press [the] case through the criminal justice system" remains upon the defendant. Barry v. Commonwealth, 390 Mass. at 296-297, 455 N.E.2d 437. In the instant case, the defendant's first pretrial motion did not simply lie fallow. The motion was incomplete and the defendant had asked for time to complete it. In a sense, his initial motion can be read as a request for a continuance. See Commonwealth v. Farris, 390 Mass. 300, 305, 455 N.E.2d 433 (1983); Commonwealth v. McCants, 20 Mass.App. at 297-300, 480 N.E.2d 25. Reports and records from Bridgewater were very slow in coming, but that cannot be laid at the feet of the prosecution or the court. The latter, particularly, was responsive to requests by the defendant for orders to officials at Bridgewater to make available the records defense counsel wished to see.

While the efforts of defense counsel ⁷ were scarcely unremitting, there was activity during the pendency of the first pretrial motion which all concerned reasonably could think was in the interest of the defendant. Cf. Commonwealth v. Johnson, 16 Mass.App. 935, 936, 450 N.E.2d 1087 (1983). At the least,...