Com. v. Rodgers

• Decision Date: 16 March 2007
• Citation: 862 N.E.2d 727,448 Mass. 538
• Parties: COMMONWEALTH v. Milton RODGERS.<SMALL><SUP>1</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

862 N.E.2d 727

448 Mass. 538

COMMONWEALTH v. Milton RODGERS.¹

Supreme Judicial Court of Massachusetts.

Suffolk.

Argued November 7, 2006.

Decided March 16, 2007.

Barbara J. Sweeney, Springfield, for the defendant.

John P. Zanini, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.²

SOSMAN, J.

The defendant appeals from his conviction of violation of an abuse prevention order, claiming that his motion to dismiss for failure to grant him a speedy trial in accordance with Mass. R.Crim. P. 36(b), as amended, 422 Mass. 1503 (1996), should have been allowed. In an unpublished memorandum of decision pursuant to its rule 1:28, the Appeals Court affirmed the conviction, concluding that the Commonwealth had met its burden of justifying the delay. We granted the defendant's application for further appellate review. While we agree that the Commonwealth met its burden of justifying the delay, we do so on grounds other than those enunciated by the judge. We therefore affirm the conviction.

1. Background. The defendant was indicted on two indictments charging rape, one as a second offense, two indictments charging indecent assault and battery, one indictment charging violation of an abuse prevention order, and two indictments charging him with being a habitual criminal. The victim, who had previously dated the defendant, obtained a protective order against him in 1999. The indictments arose out of an incident in June, 2000, when the defendant allegedly came to the victim's home and sexually assaulted her. She later became pregnant and suffered a miscarriage. In preparation for trial, first the Commonwealth and then the defendant pursued deoxyribonucleic acid (DNA) testing of the fetal remains in an attempt to determine paternity.

The defendant was arraigned on November 1, 2000. He was indigent, and counsel was appointed. On March 25, 2003, the defendant moved to dismiss pursuant to rule 36(b). After an evidentiary hearing, the judge denied the motion on May 30, 2003. Trial was held from June 24 through July 1, 2003. After several of the charges were dismissed on the Commonwealth's motion, the jury acquitted the defendant of the remaining rape and indecent assault and battery charges, and convicted him on the charge of violation of an abuse prevention order. Specific facts pertaining to the defendant's speedy trial claim will be addressed in the course of the discussion of which periods should have been included in or excluded from the calculation under rule 36.

2. Discussion. Under rule 36(b)(1)(C), a defendant "shall be tried within twelve months after the return day in the court in which the case is awaiting trial." If trial is not held within the time limits set forth, a defendant is entitled to dismissal of the charges. Mass. R.Crim. P. 36(b)(1)(D). However, charges are not to be dismissed if the delay comes within one of the "[e]xcluded [p]eriods" set forth in rule 36(b)(2), or if the defendant "acquiesced in, was responsible for, or benefited from the delay." Commonwealth v. Spaulding, 411 Mass. 503, 504, 583 N.E.2d 1257 (1992). For these purposes, "[a] failure to object to a continuance or other delay constitutes acquiescence." Commonwealth v. Tanner, 417 Mass. 1, 3, 627 N.E.2d 895 (1994). See Commonwealth v. Lauria, 411 Mass. 63, 68, 576 N.E.2d 1368 (1991); Commonwealth v. Dias, 405 Mass. 131, 139, 539 N.E.2d 59 (1989). The burden is on the Commonwealth to demonstrate that a particular period or periods should be excluded from the calculation. Commonwealth v. Spaulding, supra. Commonwealth v. Mattos, 404 Mass. 672, 674, 536 N.E.2d 1072 (1989). Barry v. Commonwealth, 390 Mass. 285, 292, 455 N.E.2d 437 (1983).³ The docket and the clerk's minutes are prima facie evidence of the facts recorded therein, id. at 289, 455 N.E.2d 437, but the parties may supplement or rebut the docket or clerk's minutes by presenting other evidence, Commonwealth v. Mattos, supra at 677, 536 N.E.2d 1072. See Commonwealth v. Fling, 67 Mass.App.Ct. 232, 237, 852 N.E.2d 1137 (2006). On appeal, we are normally "in as good a position as the judge below to decide whether the time limits imposed by the rule have run," but where there has been an evidentiary hearing on the motion, we accord the normal deference to the judge's assessment of credibility. Barry v. Commonwealth, supra.

Here, 875 days elapsed between the defendant's arraignment on November 1, 2000, and the date his rule 36(b) motion was filed on March 25, 2003.⁴ Thus, in order to fit within the time periods prescribed by the rule, the Commonwealth had to justify 510 days of delay. The defendant does not contest that 441 days were properly excluded, and we therefore do not need to address the rulings that led to exclusion of those periods. As a result, the Commonwealth must justify at least an additional sixty-nine days of delay in order to defeat the defendant's motion. Three periods of time are contested by the parties. The judge excluded 123 of those contested days, thereby ruling that the Commonwealth had succeeded in justifying the delay. The defendant argues that the judge erroneously excluded those 123 days from the calculation; the Commonwealth contends that the judge erroneously included a total of 257 days in the calculation. We consider each contested period separately below.

a. Time between the filing of the pretrial conference report and the filing of pretrial motions. The time period between the arraignment date up through seven days beyond the filing of the pretrial conference report is ordinarily included in the calculation of elapsed days. Barry v. Commonwealth, supra at 296 n. 13, 298, 455 N.E.2d 437. Commonwealth v. Sigman, 41 Mass.App.Ct. 574, 575-576, 671 N.E.2d 1008 (1996). Here, in their pretrial conference report, filed on December 4, 2000, the parties granted each other additional time for the filing of pretrial motions, agreeing to December 29, 2000, as the due date for the filing of those motions. Those additional days of extension, agreed to by the defendant, are to be excluded from the calculation. Commonwealth v. Amidon, 428 Mass. 1005, 1006, 698 N.E.2d 889 (1998). Barry v. Commonwealth, supra. Commonwealth v. Sigman, supra at 576, 671 N.E.2d 1008. Commonwealth v. Corbin, 25 Mass.App.Ct. 977, 979, 519 N.E.2d 1367 (1988). The judge, however, included in the calculation the entire time between arraignment and December 29, 2000, instead of excluding the time from seven days beyond the pretrial conference report (December 11) through the agreed extension date. This was error. Where the defendant agreed to a date more than seven days beyond the filing of the pretrial conference report, he acquiesced in that delay, and an additional eighteen days should have been excluded from the computation.⁵

b. Continuances for purposes of the Commonwealth's forensic testing. As indicated above, one of the important avenues of investigation in the case was DNA testing of the fetal remains in order to establish or rule out the defendant as the father of the miscarried fetus. Initially, the Commonwealth indicated that it would do the testing, and the time period from January 8, 2001, through September 5, 2001, includes repeated continuances by agreement with respect to the Commonwealth's motion to obtain the defendant's blood sample and status reports on the progress of the Commonwealth's testing. At the end of that period, however, the Commonwealth had not completed any testing. Thereafter, the defense took over the task of trying to have DNA testing performed.

The docket and the clerk's notes reflect defense counsel's agreement to each of the continuances throughout this period. As such, the Commonwealth presented prima facie evidence of the defendant's agreement to this entire period of delay. Barry v. Commonwealth, supra at 289, 455 N.E.2d 437. It therefore became incumbent on the defendant to refute that prima facie evidence. He did not, but the judge nevertheless included this time period as "chargeable to the Commonwealth." The judge did not explain his reasons for doing so, and we can only assume that he included this period in the calculation because the Commonwealth did not in fact conduct testing.⁶ That does not change the fact that, at each of the Commonwealth's requested postponements of status conferences on the subject, the defendant agreed to postponements to specific future dates. See Commonwealth v. Fleenor, 39 Mass.App.Ct. 25, 27 & n. 3, 652 N.E.2d 899 (1995) (agreement to specific periods of delay distinguishable from failure to object to unlimited period of delay). There is no evidence to suggest that the Commonwealth misled the defense as to the progress (or lack thereof) in testing,⁷ and the defendant was always free to insist that a scheduled status conference go forward so that the delay in testing could be explained to the judge. For whatever reason (perhaps in the hope that testing would exclude the defendant as the father of the fetus), the defendant agreed to a series of scheduled postponements that, in total, amounted to a protracted delay. The issue before us is whether there was such agreement or acquiescence, not whether the delay itself was reasonable. The 239 days of delay encompassed by this period should have been excluded from the calculation of elapsed time.

c. Continuances agreed to by defense counsel while the defendant's motion for new counsel was pending. Although the above excluded periods are, by themselves, more than sufficient to satisfy the Commonwealth's burden, we consider the final contested period, as the exclusion of that period was critical to the judge's conclusion that that burden had been satisfied. We agree with the defendant that most of that period should have been included in, not excluded from, the calculation.

The defense was pursuing DNA testing (without results) during the winter and spring of 2002. By sometime that...