Com. v. Parry

Citation1 Mass.App.Ct. 730,306 N.E.2d 855
PartiesCOMMONWEALTH v. David L. PARRY.
Decision Date06 February 1974
CourtAppeals Court of Massachusetts

Michael A. Paris, Boston, for defendant.

Alfred R. Shrigley, Asst. Dist. Atty. (A. Stanley Littlefield, Dist. Atty., with him) for the Commonwealth.

Before ROSE, KEVILLE and ARMSTRONG, JJ.

ROSE, Justice.

The defendant was indicted on seven counts of larceny, tried before a jury and convicted on all counts. A brief summary of the evidence in the case, as presented in the defendant's bill of exceptions, is as follows: On several dates in December, 1969, one Lydia Gibbs received telephone calls from a person who identified himself as the Commissioner of Banks of Massachusetts. The caller asked Gibbs to assist in a bank investigation by withdrawing money from one of her bank accounts and turning the money over to a man said to be an agent of the Federal Bureau of Investigation (F.B.I.). Gibbs was told that the F.B.I. agent would mark the money and return it to her in an envelope. After following the caller's instructions with respect to six of her bank accounts, Gibbs became suspicious and, upon investigation, ciscovered that the envelopes which she had been given contained newspaper clippings instead of money. Fingerprints found on the clippings and the envelopes were forwarded to the F.B.I., which matched them with prints known to belong to the defendant.

1. The defendant's first exception concerns the alleged denial of his right to a speedy trial, as guaranteed by art. 11 of the Declaration of Rights of the Massachusetts Constitution and the Sixth Amendment to the United States Constitution. The relevant dates are as follows: On May 13, 1971, the defendant was indicted and on September 23 he filed a motion for speedy trial. The motion was heard and allowed on September 28. At the same time, the motion judge granted the defendant's request for production of scientific reports prepared by the F.B.I. relating to fingerprint identification. The defendant was given an opportunity to stand trial in the Superior Court session then in progress in Plymouth County, but refused on the ground that he needed the F.B.I. fingerprint report 1 in order to prepare his defense. Consequently, the case was set down for trial during the court's next session in Plymouth County (January, 1972) over the defendant's exception. During the remainder of 1971, the defendant corresponded with the district attorney in an effort to secure the fingerprint report in the hands of the F.B.I. On January 13, 1972, he wrote to the district attorney to ask that the report in question be obtained and the case set down for trial during the court session then in progress.

On January 19, the defendant received one F.B.I. report and was told by the district attorney that the 'press of court business' might prevent his case from being tried until the next court session, in May. By a letter dated January 25, the defendant informed the district attorney that the F.B.I. report which he had received was not what he had requested 2 and asked for more specific information. Two days later, on January 27, the defendant wrote to the district attorney, reminding him that his motion for speedy trial had been allowed in September and demanding that his case be added to the January trial list. No action was taken on the defendant's request, but on February 3 a defense motion to dismiss the indictments for lack of a speedy trial was heard and denied and the case was assigned for trial on May 8, 1972. The defendant took exception to the denial of his motion, arguing that he had been ready for trial in January had would have waived his right to the F.B.I. report (there is nothing in the record to indicate that he had offered to do so) in order to have his case heard during the January session. The defendant renewed his motion to dismiss on May 1, 1972; it was denied at the commencement of his trial, on May 8.

The test which must be employed in balancing the rights and conduct of the prosecution and the defendant in a speedy trial case requires an 'ad hoc' consideration of each of the following factors: '(1) Length of delay, (2) the reason for the delay, (3) the defendant's assertion of his right, and (4) prejudice to the defendant.' Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). COMMONWEALTH V. HORNE, MASS (1973). 291 N.E.2D 629, 633.A' Commonwealth v. Steadman, Mass.App.Ct. (1973), 303 N.E.2d 356. The key issue in this case is 'whether the Commonwealth took 'reasonable action to prevent undue delay in bringing (the) defendant to trial. '' COMMONWEALTH V. HORNE, MASS. (1973), 291 N.E.2D 629, 633,B quoting Commonwealth v. McGrath, 348 Mass. 748, 752, 205 N.E.2d 710 (1965).

One year elapsed between the date of the defendant's indictments and the date of his trial. Four months of this time was attributable to the defendant's request for discovery and a further four months to the delay steming from the defendant's misunderstanding with the district attorney as to what was comprehended in the court's allowance of the defendant's discovery motion. Id does not appear from the bill of exceptions that the Commonwealth acted negligently or in bad faith in providing the F.B.I. report. See Barker v. Wingo, supra, 407 U.S. at 531, 92 S.Ct. 2182, 33 L.Ed.2d 101; COMMONWEALTH V. HORNE, MASS. (1973), 291 N.E.2D 629.C Having been notified by letter dated January 25 that the report was unacceptable to the defendant, and knowing that his trial had been postponed since September to permit discovery, the Commonwealth was justified in assuming that the defendant did not want a January trial at the expense of his right to discovery and therefore in leaving his case off the trial list for that month.

As regards the other factors stressed in Barker v. Wingo, we note, first, that the defendant asserted his right to a speedy trial in a timely manner. We discern no prejudice to the defendant as a result of the four month delay. 3 It appears from the defendant's brief that he was imprisoned for one or more other offenses during the relevant period. We find no evidence to support the contention that as a result of any delay he suffered 'oppressive pretrial incarceration,' felt an unusual degree of 'anxiety and concern,' or was hampered in preparing his defense. Barker v. Wingo, supra, 407 U.S. at 532, 92 S.Ct. 2182, 33 L.Ed.2d 101.

On balance, taking into consideration the relative briefness of the delay in this case, the extent to which the delay was caused by the defendant's requests for discovery and the reasonable misunderstandings relating thereto, and the lack of evidence of prejudice flowing from the delay, we conclude that the defendant was not deprived of his constitutional right to a speedy trial.

2. In addition to his constitutional claim, the defendant argues that he was denied his statutory rights under G.L. c. 277, § 72A, (as appearing in St.1965, c. 343) in that he was not notified in writing by the Commissioner of Correction either of the pendency of indictments against him or of his right to apply for trial or other disposition of any such indictments within six months, 'unless the court shall otherwise order.' We are of the opinion that the purposes of § 72A are served where a defendant is promptly arraigned (thus learning of the new indictments against him) and is continuously represented by counsel (who can advise him of his rights under the statute). In the instant case the defendant was assigned counsel, heard the indictments against him read in open court, and pleaded to them within five days of the date they were handed down. The notice requirements of § 72A were therefore not applicable to his case. 4

3. The defendant also objected to Gibbs' testimony concerning the calls which she received, contending that this testimony was hearsay. No exception was taken to the admission of this testimony and it is settled that a bill of exceptions which does not disclose the saving of any exception in the court below brings no question of law to this court. Commonwealth v. Underwood, 358 Mass. 506, 509, 265 N.E.2d 577 (1970). Commonwealth v. Stout, 356 Mass. 237, 243, 249 N.E.2d 12 (1969). Commonwealth v. Lussier, Mass. (1973), 305 N.E.2d 499. We note in passing that the above-described testimony could not have been hearsay since the Commonwealth was not seeking to establish the truth of the statements contained therein. The testimony was relevant and admissible to show the existence of an illegal scheme to which the defendant was linked, not by Gibbs' testimony, but by the discovery of his fingerprints on the newspaper clippings and envelopes.

4. The defendant also took exception to the trial judge's decision to permit Gibbs to remain in the courtroom between two portions of her testimony, in modification of his prior order that she be sequestered. Because she remained, Gibbs was able to hear other witnesses identify certain envelopes before identifying them herself. The defendant does not dispute that the initial decision whether to sequester a witness is discretionary with the trial judge (Zambarano v. Massachusetts Turnpike Authy., 350 Mass. 485, 487, 215 N.E.2d 652 (1966); Commonwealth v. Blackburn, 354 Mass. 200, 205, 237 N.E.2d 35 (1968)), but argues that the trial judge abused his discretion by revoking his order. 5 This argument, however, is untenable in light of the long-standing rule that 'the making, modifying and revoking of orders relating to the course of the trial shall be left to the discretion of the presiding judge.' Commonwealth v. Hall, 4 Allen 305, 306 (1862).

5. The defendant further excepted to admission of testimony by a local police officer that on November 24, 1970, (approximately one year after the commission of the larcenies) he took fingerprints and 'mug shots' of the defendant. The prints were sent to Washington where they were matched with...

To continue reading

Request your trial
19 cases
  • Com. v. Underwood
    • United States
    • Appeals Court of Massachusetts
    • October 20, 1975
    ...Commonwealth v. Boyd, --- Mass. ---, --- - --- q, 326 N.E.2d 320 (1975); Commonwealth v. Parry, --- Mass.App. ---, --- - --- r, 306 N.E.2d 855 (1974). There is little if any explanation in the record for the remaining delay, the period between November 2, 1972, and June 20, 1973. However, '......
  • Com. v. Jones
    • United States
    • Appeals Court of Massachusetts
    • December 26, 1978
    ...would have been forthcoming in the absence of delay and so must be treated as speculative and insubstantial. Commonwealth v. Parry, 1 Mass.App. 730, 734 n. 3, 306 N.E.2d 855 (1974). Commonwealth v. Burhoe, 3 Mass.App. at --- - --- S, 337 N.E.2d 913. Commonwealth v. Campbell, 5 Mass.App. at ......
  • Com. v. Blaney
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • November 17, 1982
    ...which he is being tried. See Commonwealth v. Andrade, 8 Mass.App.Ct. 653, 658-659, 396 N.E.2d 713 (1979); Commonwealth v. Parry, 1 Mass.App.Ct. 730, 736-737, 306 N.E.2d 855 (1974). Defense counsel's questions may have precluded this possibility. In these circumstances, we think that the jud......
  • People v. Hernandez
    • United States
    • California Superior Court
    • January 10, 1985
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT