Com. v. Patten

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 401 Mass. 20,513 N.E.2d 689
• Parties: COMMONWEALTH v. Aaron Louis PATTEN, Third.
• Decision Date: 08 October 1987

Page 689

513 N.E.2d 689 401 Mass. 20 COMMONWEALTH
v.
Aaron Louis PATTEN, Third. Supreme Judicial Court of Massachusetts,
Middlesex. Argued Sept. 9, 1987.
Decided Oct. 8, 1987.

Page 690

Michael R. Pinta, Boston, for defendant.

Natalea Skvir, Asst. Dist. Atty., Boston, for Com.

Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN and LYNCH, JJ.

WILKINS, Justice.

On December 20, 1972, Edward J. Donovan, manager of the cocktail lounge in the Holiday Inn on Massachusetts Avenue in Cambridge, was shot and killed in the course of an attempted armed robbery. One George E. Clark was identified as one of the two men who participated in the [401 Mass. 21] crimes. In 1977 Clark was convicted of the murder in the first degree of Donovan. ¹ The other participant was not then identified. In 1983, in anticipation of a recommendation

Page 691

that his sentence be reduced, Clark identified the defendant as the other participant and agreed to cooperate at his trial. The defendant was indicted on March 22, 1983. He was tried and convicted in April, 1984, of murder in the first degree.

The case against the defendant was strong. There was evidence that his fingerprints were found on an empty beer bottle and on top of the bar in the lounge. He has scars which are consistent with bullet wounds for which a man was treated at the Chelsea Naval Hospital later on the night of the murder. A ballistics expert identified a bullet removed from that patient as having been fired from the victim's gun. We need not recite the evidence in greater detail in order to present and resolve the issues in this case.

The defendant argues that (1) there was prejudicial preindictment delay; (2) his pretrial motion to dismiss on grounds of double jeopardy should have been allowed; (3) he was denied his right to a fair trial when the judge delayed in dismissing a juror who, during the trial, volunteered that he knew a witness; and (4) the judge's rulings on certain issues denied the defendant due process of law and entitle him to relief under G.L. c. 278, § 33E. We reject all these arguments and affirm the conviction.

1. The judge properly denied the defendant's motion to dismiss the indictment. To meet his burden of showing that preindictment delay denied him due process of law under the State or Federal Constitutions a defendant must prove both that the delay prejudiced his case and that the government intentionally or recklessly caused that delay. Commonwealth v. Best, 381 Mass. 472, 484, 411 N.E.2d 442 (1980). Commonwealth v. Imbruglia, 377 Mass. 682, 688, 691, 387 N.E.2d 559 (1979). See United States v. Lovasco, 431 U.S. 783, 795-796 & n. 17, 97 S.Ct. 2044, 2051-52 & n. 17, 52 L.Ed.2d 752 (1977); United States [401 Mass. 22] v. Marler, 756 F.2d 206, 213 (1st Cir.1985). The defendant made no adequate showing in support of his claim that the Commonwealth recklessly caused prejudicial delay.

This case involves a substantial interval of slightly more than ten years between the murder and the indictment. It involves, however, neither demonstrated prejudice to the defendant's position arising from that delay nor demonstrated reckless governmental conduct causing the delay. The defendant asserts that he was prejudiced because the prosecution could not produce certain items of possible significance: two glasses from which the robbers drank beer while in the lounge; x-rays of the man who was treated on that night at the Chelsea Naval Hospital; a composite drawing of the man who shot Donovan, made with the assistance of the bartender; and arrays of photographs used by certain eyewitnesses to identify certain characteristics of the robbers. None of the eyewitnesses who testified identified the defendant.

On the record before the judge, the missing evidence was as likely to have been inculpatory as exculpatory. A defendant must show, on concrete evidence, and not simply by a fertile imagination, a reasonable possibility that access to the lost items would have produced evidence favorable to his cause. See Commonwealth v. Willie, 400 Mass. 427, 433, 510 N.E.2d 258 (1987). See also United States v. Agurs, 427 U.S. 97, 109-110, 96 S.Ct. 2392, 2400-01, 49 L.Ed.2d 342 (1976); Commonwealth v. Charles, 397 Mass. 1, 14, 489 N.E.2d 679 (1986). The defendant has made no such showing. ²

The defendant was indicted promptly after Clark revealed his name. There is no evidence or claim that the Commonwealth intentionally delayed the defendant's indictment.

Page 692

Nor is there any support for the claim that the Commonwealth was reckless in not discovering the defendant's involvement sooner.

[401 Mass. 23] 2. The defendant's double jeopardy claim fails for want of factual support. The...