Com. v. Needel

• Decision Date: 28 October 1965
• Citation: 349 Mass. 580,211 N.E.2d 335
• Parties: COMMONWEALTH v. Rubin F. NEEDEL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 335

211 N.E.2d 335

349 Mass. 580

COMMONWEALTH v. Rubin F. NEEDEL.

Supreme Judicial Court of Massachusetts, Hampden.

Argued Oct. 4, 1965.

Decided Oct. 28, 1965.

Edgar A. Rimbold, Boston (Ronald J. Chisholm, Winchester, with him), for defendant.

Matthew J. Ryan, Jr., Dist. Atty., for the Commonwealth.

Before SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL and REARDON, JJ.

WHITTEMORE, Justice.

There was no error in the denial, on September 22, 1964, of the defendant's motions to dismiss indictments and his pleas in bar. The indictments respectively for kidnapping (No. 11,026) and assault and robbery while armed (No. 11,027), were returned in January, 1960. The defendant was not brought to trial promptly, being incarcerated in the Massachusetts Correctional Institution at Walpole for violation of a parole. A bench warrant with respect of No. 11,027 was filed at the institution in February, 1960. On July 10, 1964, after the expiration of the previous sentence the defendant was arraigned in the Superior Court. The defendant was tried on September 22, 1964, and convicted and sentenced in due course.

The motions and pleas were grounded on the contention that the defendant's right to a speedy trial, as guaranteed in the Constitutions of the United States and the Commonwealth of Massachusetts, had been violated. The only evidence at the hearing on the motions and the pleas were the 'papers themselves'--that is, the court files and certain correspondence therein. The defendant testified at the trial.

The right to a speedy trial is personal and may be waived; in the absence of circumstances negativing the implication, failure to demand prompt trial implies waiver. Commonwealth v. Hanley, 337 Mass. 384, 387-388, 149 N.E.2d 608, 66 A.L.R.2d 222 (cert. den. sub nom. Hanley v. Massachusetts, 358 U.S. 850, 79 S.Ct. 79, 3 L.Ed.2d 85), and cases cited. United States v. Hill, 310 F.2d 601, 603 (4th Cir.), and cases cited. There is nothing in COMMONWEALTH V. MCGRATH, MASS., 205 N.E.2D 710,^A that modifies this rule.

The defendant on March 12, 1960, wrote the clerk asking what indictments were pending against him. On March 16, 1961, he wrote asking what indictments were pending and the date of the next criminal session. The clerk answered as to No. 11,026 in March, 1960, and as to both indictments in a letter dated March 20, 1961 which also stated that '[t]he next criminal session of this court convenes on the first Monday of May next. For further information, we suggest that you write to Matthew J. Ryan, District Attorney, 37 Elm Street, Springfield, Massachusetts.' The defendant on October 16, 1961, requested copies of the indictments in accordance with G.L. c. 277, § 67. A ocpy of indictment No. 11,026 was sent in October, 1961, and, in answer to a letter of February 20, 1963, asking expressly for the indictment No. 11,027, it was sent in that month.

Statute 1963, c. 486, inserting § 72A ¹ in G.L. c. 277, became effective September 18, 1963. Notice by the commissioner of correction to the defendant is to be presumed in view of the bench warrant lodged at the correctional institution in 1960. There is no showing of a demand by the defendant for trial under this statute or at any time before its enactment.

The letter asking the date of the next criminal session implies a belief in the possibility that the law permitted a trial at that time. In the circumstances, including the absence of any request for trial or protest at the delay, the letter of March 16, 1961, requesting the date of the next session is not to be construed as a request for trial.

The defendant points out that, had he been promptly arraigned, Rule 10 of the Rules for the Regulation of Practice before the Full Court, 345 Mass. 792 (assignment of counsel in noncapital cases) would have assured him of counsel had he so wished and that counsel would have advised him of his constitutional rights. But on this record,...