Com. v. Moore
| Decision Date | 26 June 1985 |
| Citation | 20 Mass.App.Ct. 1,477 N.E.2d 1033 |
| Parties | COMMONWEALTH v. Ella J. MOORE (and companion cases 1 ). |
| Court | Appeals Court of Massachusetts |
Judy G. Zeprun, Asst. Dist. Atty., for the Commonwealth.
Patricia A. O'Neill, Boston, for Sharon L. Berry.
Robert P. Reardon, for Ella J. Moore (John J. Ruby, Jr., Boston, for James E. Carrington and Roger I. Witkin, Boston, for Curtis A. Babb with him).
Before ARMSTRONG, CUTTER and PERRETTA, JJ.
On April 22, 1982, the four defendants were indicted for alleged offenses, including possession of heroin with intent to distribute it, illegal possession of firearms, and conspiracy. On May 11, 1982, they were arraigned. After an extended period of somewhat complicated pretrial proceedings and continuances, a Superior Court judge (Motion Judge No. 2) "with judicial reluctance" (in view of the serious crimes charged) allowed a second group of motions to dismiss the indictments for violation of the defendants' right to a speedy trial. Mass.R.Crim.P. 36, 378 Mass. 909 (1979), hereafter referred to only as Rule 36. 2 From the judgments of dismissal, the Commonwealth appeals. Mass.R.Crim.P. 15(b)(1), 378 Mass. 883 (1979), and Mass.R.A.P. 3 & 4, 365 Mass. 845-847 (1974).
1. The defendants filed two sets of motions to dismiss under Rule 36. The first set of these motions, filed in early October, 1983, was denied by a Superior Court judge (Motion Judge No. 1) on October 31, 1983. He concluded that under Rule 36 the Commonwealth was bound to bring the defendants to trial within one year after their arraignment on May 11, 1982, or before May 12, 1983, unless under Rule 36 there were days to be excluded by virtue of the rule. Motion Judge No. 1 decided that, as of October 4, 1983, the first day of hearings on the first group of motions to dismiss, 193 days were properly to be excluded under Rule 36, and that, "[t]he Commonwealth must [under Rule 36] justify 146 days of delay from and after May 11, 1983." There thus remained as of October 4, 1983, forty-seven days in which the Commonwealth could mark the cases for trial.
A second set of motions to dismiss for failure to provide a speedy trial was heard on March 21 and 22, 1984, by Motion Judge No. 2, who filed her memorandum of decision allowing the motions on March 29, 1984. Her action is the subject of the present appeal by the Commonwealth, which makes various contentions discussed below.
2. Motion Judge No. 2 incorporated by reference in her decision Motion Judge No. 1's decision of October 31, 1983, "with all of his findings and conclusions therein." The Commonwealth made no objections before Motion Judge No. 2 concerning the findings and conclusions of Motion Judge No. 1 and, indeed, urged upon Motion Judge No. 2 that she accept his conclusions with respect at least to the defendant Berry. 3 The prosecutor who appeared before Motion Judge No. 2 also stated to her that the critical period of time for the latter's consideration was from October 4, 1983, until February 10, 1984, a position Motion Judge No. 2, in effect, accepted by saying that she did "not intend to go behind ... [the] memorandum" of decision of Motion Judge No. 1. No written or oral request was made by the Commonwealth to Motion Judge No. 2 to revise the findings and conclusions of Motion Judge No. 1 in any respect. Motion Judge No. 2 thus was acting well within her sound discretion in not altering findings and rulings of another Superior Court judge. 4 We review this case on the basis that we also need deal only with days to be excluded under Rule 36 from and after October 4, 1983.
3. Motion Judge No. 2 found that the defendant Moore's motion to dismiss (with companion motions) was taken under advisement by Motion Judge No. 1 on October 14, 1983, after an interval following October 4 which reasonably allowed for the submission of pertinent drafts of findings, briefs, and the like. In normal course, all attorneys would have been notified of the decision filed by Motion Judge No. 1 on October 31, 1983. The clerk's office, however, failed by some completely unexplained error, which clearly should not have taken place, to inform counsel of the decision. Motion Judge No. 2 assumed for the purposes of ruling on the motions that the period between October 4 and November 14, 1983, was excludable under Rule 36(b)(2)(A)(vii). She took the position that, under that provision, the parties could reasonably assume, until thirty days after Motion Judge No. 1 had taken under advisement the first motions to dismiss, that he had not decided the motions. After that, she concluded, the parties all were placed under some obligation to make inquiry. She thus ruled that the time which elapsed after November 14, 1983, was not excludable.
Motion Judge No. 2 also found as a fact that some defense counsel heard by accident during November, 1983, that Motion Judge No. 1 had ruled adversely to their position. The prosecutor became aware of the decision by December 27, 1983. Although defense counsel apparently had not disclosed their knowledge to the district attorney's office, Motion Judge No. 2 rejected the Commonwealth's contention that their failure to do so caused the defendants to be partly responsible for failure to press the case. 5 She ruled that the burden of assuring that criminal defendants receive a speedy trial rests upon the Commonwealth, which "has assumed strong control over the trial lists and the cases set down for trial." See Barry v. Commonwealth, 390 Mass. 285, 296 n. 13, second par., 455 N.E.2d 437 (1983). This conclusion is consistent with the specific interpretation found in the Reporters' Notes to Rule 36, discussing Rule 36(a)(2)(B) and (b), Mass.Ann.Laws, Rules of Criminal Procedure, 525-526 (Law.Co-op.1979). 6 See also Smith, Criminal Practice and Procedure, § 2261 (2d ed.1983). We conclude that Motion Judge No. 2 reasonably decided (a) that the defendants, in the circumstances, were under no obligation after November 14, 1983, to take any steps to press the cases for trial (see Smith, supra, § 2265) and (b) that, in view of the Commonwealth's assumption of control of the criminal trial lists, no action of the defendants or their counsel amounted to a waiver of the clients' rights under Rule 36.
4. The Commonwealth contends that the defendant Babb's motion (see note 6, supra, last two sentences) based on Commonwealth v. Gagnon, 387 Mass. 567, 441 N.E.2d 753 (1982), gave rise to a period to be excluded from the time limits under Rule 36. 7 The contention is that this period ran from the date the motion was filed on December 30, 1982, until it was allowed on February 27, 1984. In effect, the argument is that Rule 36(b)(2)(A) (v) provides that any period of delay resulting from hearings on pretrial motions is to be excluded. Rule 36 8, however, does not indicate when the period to be excluded for such hearings begins or ends. 9
The Commonwealth concedes that neither Motion Judge No. 1 nor Motion Judge No. 2 "considered whether the period of delay [because of Babb's motion] December 30, 1982, ... [to] February 10, 1984 [the date when the cases were called for trial], was excludable when they denied and allowed, respectively, the defendants' first and second [groups of] motions to dismiss pursuant to Rule 36." The record and the transcript of the hearing before Motion Judge No. 2 do not indicate that any effort was made by the Commonwealth to raise this contention before either motion judge. The Commonwealth first raises this matter on this appeal. As the court pointed out in the Barry case, 390 Mass. at 289-290, 455 N.E.2d 437, we may be "in as good a position as ... [either motion] judge ... to decide whether the time limits imposed by the rule have run." See Commonwealth v. Farris, 390 Mass. 300, 303-304, 455 N.E.2d 433 (1983). We conclude, however, that this is an appropriate case in which to apply the principle that an "issue not fairly raised before the trial judge will not be considered for the first time on appeal." Commonwealth v. Marchionda, 385 Mass. 238, 242, 431 N.E.2d 177 (1982). See Commonwealth v. Lett, 393 Mass. 141, 144, 470 N.E.2d 110 (1984); Commonwealth v. Wilder, 18 Mass.App. 782, 784, 471 N.E.2d 118 (1984). We note that, if the Commonwealth had found the defendant Babb's somewhat routine motion under the Gagnon case an embarrassment to obtaining trial, it could have marked the motion for hearing or consented to it, as it did with the defendant Carrington's oral motion. See note 6, supra. 10
Judgment affirmed.
APPENDIX.
Mass.R.Crim.P. 36, 378 Mass. 909 (1979).
See Smith, Criminal Practice & Procedure, §§ 2261-2263 (2d ed. 1983). (All emphasis, except some paragraph headings, is added.)
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