Com. v. Petrozziello

• Decision Date: 15 April 1986
• Citation: 491 N.E.2d 627,22 Mass.App.Ct. 71
• Parties: COMMONWEALTH v. Ralph J. PETROZZIELLO.
• Court: Appeals Court of Massachusetts

Page 627

491 N.E.2d 627

22 Mass.App.Ct. 71

COMMONWEALTH v. Ralph J. PETROZZIELLO.

Appeals Court of Massachusetts,

Suffolk.

Argued March 10, 1986.

Decided April 15, 1986.

Harry L. Manion, III (John B. Kinsellagh, Boston, with him) for defendant.

Judy G. Zeprun, Asst. Dist. Atty. (Charles M. Campo, Jr., Sp. Asst. Dist. Atty., with her), for the Commonwealth.

Before GREANEY, C.J., and KAPLAN and DREBEN, JJ.

GREANEY, Chief Justice.

The defendant moved in the Superior Court to dismiss indictments charging him with murder in the first degree and armed robbery. He maintains that dismissal was required because the Commonwealth had violated the Interstate Agreement on Detainers (Agreement), to which both the Commonwealth (St. 1965, c. 892, § 1) and the United States (Pub.L. No. 91-538, 84 Stat. 1397 [1970] are parties. After an evidentiary hearing, a judge of the Superior Court denied the motion and reported the question of the correctness of his ruling to this court. ¹ See Mass.R.Crim.P. 34, 378 Mass. 905-906 (1979).

The facts were established by the judge after an evidentiary hearing and may be summarized as follows. On May 24, 1974, a Boston police officer was shot and killed during an armed robbery of a supermarket. On October 10, 1979, the defendant was charged in two indictments with the armed robbery and the first degree murder of the officer. On December 5, 1979, the district attorney for the Suffolk District obtained a Federal flight warrant against the defendant. This warrant was delivered to the Federal Bureau of Investigation together with the original Suffolk warrant for the defendant's arrest. On August 5, 1983, the defendant was taken into Federal custody pursuant to the flight warrant and a Federal parole violation warrant issued in 1979. ² On August 9, 1983, the Suffolk district attorney sent a detainer to the Federal correctional institution in Milan, Michigan, where the defendant was incarcerated pending disposition of the parole revocation proceedings.

The defendant was thereafter moved, on September 22, 1983, from Milan to the Federal correctional institution in Danbury, Connecticut, and moved again, on September 25, 1983, from Danbury to the State prison in New Hampshire, where he was held as a Federal prisoner. Parole violation hearings scheduled for November 8, 1983, and January 11, 1984, were continued at Petrozziello's request.

On December 2, 1983, counsel for the defendant requested by letter that the Suffolk district attorney's office arraign and try him as soon as possible on the robbery and murder charges. On December 7, 1983, the defendant requested that the United States Marshal provide him with copies of all detainers lodged against him. He was told, on December 12th, that at his parole revocation hearing he would be advised of "who has what on you." On January 10, 1984, the district attorney for the Berkshire District formally requested temporary custody of the defendant, pursuant to art. IV of the Agreement, in order to try him on an indictment for armed robbery while masked. The defendant was informed of the Berkshire detainer, and on January 17, 1984, requested, pursuant to art. III of the Agreement, the disposition of all charges against him.

On January 24, 1984, the defendant was transferred to the custody of Berkshire County. Upon taking custody, the district attorney there notified all Commonwealth district attorneys that under the Agreement the defendant had to be tried on all State charges before being returned to Federal custody. On January 26, 1984, he was arraigned in the Superior Court in Berkshire County on the armed robbery while masked charge pending in that county and arraigned on January 30, 1984, in the Superior Court in Suffolk County on the armed robbery and murder charges pending there. On March 13, 1984, the United States Parole Board revoked the defendant's parole. From March 19, 1984, through April 6, 1984, he was tried before a jury in Berkshire County and acquitted of the armed robbery while masked offense. The defendant was then returned to Federal custody on April 9th or 10th as a result of a mistake on the part of the district attorney's office in Berkshire. The circumstances of that transfer are more fully described in the judge's findings as follows:

"I find that the return of Petrozziello to Federal custody on April 9 or 10 resulted from negligence by the district attorney's office in Berkshire County.

"This finding is based on the following. From the evidence presented, I conclude that Petrozziello's acquittal was both a surprise and a substantial disappointment to the district attorney's office in Berkshire County. A temporary paralysis apparently prevailed in the district attorney's office after the jury's verdict was returned. Such an atmosphere no doubt accounts for the following developments.

"Major John Shaughnessy, the director of security at the Berkshire house of correction, called first assistant district attorney Daniel Ford on the afternoon of April 6. The jury was deliberating at the time of the call. Mr. Ford, the prosecutor of the Berkshire action against Petrozziello, was out of his office. Shaughnessy left a message indicating that Ford should work out the problems concerning Petrozziello's transportation with the United States Marshal's Office. This message was not received by Mr. Ford until after he learned of the jury's disheartening (from his point of view) verdict. He then turned the message over to State trooper Richard Smith and told him to take care of it. Trooper Smith was assigned to the district attorney's office. Smith then made a series of telephone calls regarding Mr. Petrozziello's transportation to Boston. His first call was to Bernard Stone in the United States Marshal's Office. Thereafter he made and received calls from the Berkshire County house of correction. Finally trooper Smith learned that Berkshire County correction officials either could not or would not transport Petrozziello to Boston, so he made arrangements with Bernard Stone to turn Petrozziello over to Deputy United States Marshals at the Federal courthouse in Springfield the following Monday. That evening, April 6, trooper Smith fully apprised Mr. Ford of these arrangements. During his testimony, Mr. Ford admitted that he had been so advised; however, he thought at the time, so he testified, that the United States Marshals were going to transport Mr. Petrozziello back to Boston to the Suffolk County district attorney. Instead, they transported Petrozziello to Danbury, from which he was thereafter transferred to Lewisburg."

The district attorney in Suffolk was not notified of the defendant's transfer at any time between April 6th and 10th, but first learned of the defendant's return to Federal custody on April 12, 1984. On May 10, 1984, the defendant's counsel filed this motion to dismiss the Suffolk indictments on the ground that the Agreement had been violated.

The defendant alleges two violations of the Agreement that he contends require dismissal of the Suffolk County indictments for murder and robbery. First, he maintains that the indictments must be dismissed because pursuant to subsections (a ) and (d ) of art. III of the Agreement the Suffolk district attorney's office failed to try him within 180 days of the lodging of a detainer against him by that office on August 9, 1983. Second, he maintains that arts. III(d ), IV(e ) and V(c ) require dismissal because he was returned to Federal custody before the charges underlying the Suffolk County detainer were tried. ³

Before discussing these contentions, we think it useful to summarize the background of the Agreement and the manner in which it operates.

The Agreement provides a prisoner with an orderly method for the final resolution of pending detainers ⁴ and furnishes prosecutors with a uniform procedure by which they can obtain temporary custody of a prisoner for purposes of trial. In so doing, the Agreement sought to redress certain abuses involving detainers. Before the Agreement's enactment, it was commonplace to see detainers routinely filed, often with little basis in fact, which worked to the prisoner's prejudice. See Carchman v. Nash, 473 U.S. 716, 105 S.Ct. 3401, 3408, 87 L.Ed.2d 516 (1985). In many cases, the prisoner's custodians would consider the pending charges underlying the detainers as proof of criminal proclivity adversely affecting the prisoner's eligibility for work assignments, other rehabilitation opportunities, and parole. Id. at 3408-3409. See also United States v. Scheer, 729 F.2d 164, 166-167 (2d Cir.1984). It was not infrequent to see a continual cycle of prosecution, a return to imprisonment, and prosecution without any rehabilitation in between. It was also not unusual for pending detainers to be withdrawn shortly before the prisoner was released. Carchman v. Nash, supra, 105 S.Ct. at 3408. This generally unregulated system frustrated both prisoner and prosecutor. To alleviate these problems the Agreement was adopted to "encourage the expeditious and orderly disposition of [pending] charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints." United States v. Scheer, supra at 167, quoting from art. I of the Agreement.

The provisions of arts. III and IV form the core of the Agreement. Article III focuses on the prisoner. Article III(a ) provides that a prisoner who "has entered upon a term of imprisonment" can request the speedy disposition of the charges giving rise to a detainer. If the prisoner makes such a request, the jurisdiction that filed the detainer must bring him to trial within 180 days. For good cause, however, a court may grant necessary or reasonable continuances which extend this time. Article III(c ) requires that the prisoner's custodian shall promptly inform him of detainers lodged against him and of his right to make a request for final disposition...