Com. v. Underwood

• Decision Date: 20 October 1975
• Parties: COMMONWEALTH v. Bernard F. UNDERWOOD.
• Court: Appeals Court of Massachusetts

Page 915

335 N.E.2d 915

3 Mass.App.Ct. 522

COMMONWEALTH

v. Bernard F. UNDERWOOD.

Appeals Court of Massachusetts, Essex.

Argued May 15, 1975.

Decided Oct. 20, 1975.

Lois M. Lewis, West Newton, for defendant.

John H. Perrone, Asst. Dist. Atty., for the Commonwealth.

Before ROSE, GRANT and ARMSTRONG, JJ.

ROSE, Justice.

The defendant was convicted on three indictments for armed robbery in a trial held subject to G.L. c. 278, §§ 33A--33G. He is here on an assignment of errors, on the basis of which he advances three principal arguments. Errors assigned but not argued are deemed waived. The facts material to the argued issues will be recited separately in our discussion of each of them.

1. First, the defendant contends that he was denied his right to a speedy trial, in violation of the statutory mandate of G.L. c. 277, § 72A, as amended through St.1965, c. 343, and the guarantees of the United States (Sixth Amendment by reason of the Fourteenth, see Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967)), and Massachusetts (art. 11 of the Declaration of Rights) Constitutions.

The chronology of events material to this issue is as follows. The robberies occurred on November 14, 1971. The defendant was named in three complaints issued by a District Court on November 30, 1971. At that time the defendant was a fugitive from justice, but he was returned to M.C.I., Walpole, on May 10, 1972. ¹ Arrest warrants were lodged at Walpole on November 2, 1972. On December 11, 1972, the defendant signed an application under G.L. c. 277, § 72A. The Commissioner of Correction signed the application on December 13, 1972, but it was not received by the District Court until February 13, 1973. The defendant was arraigned in the District Court on June 20, 1973, where he filed a motion to dismiss on July 31, 1973, on the ground of failure to grant a speedy trial in compliance with G.L. c. 277, § 72A. This motion was denied by the court on the same day. The defendant then filed pro se, on September 14, 1973, a petition seeking interlocutory relief in the Supreme Judicial Court. ² The indictments were returned September 21, 1973. A motion to dismiss the indictments for failure to grant a speedy trial was filed in the Superior Court on October 24, 1973, and denied on November 12, 1973. The motion to dismiss was renewed at the inception of the trial on February 14, 1974.

A. We first consider the defendant's claim that the Commonwealth failed to comply with the requirements of G.L. c. 277, § 72A. That statute provides, in the parts relevant to the question before us, that a 'prisoner serving a term of imprisonment . . . has the right to apply' to a court in which an 'untried indictment, information or complaint is pending' against him 'for prompt trial or other disposition thereof. Such application shall be . . . sent by such prisoner to the commissioner of correction . . ., who shall promptly forward it to such court . . .. Any such prisoner shall, within six months after such application is received by the court, be brought into court for trial or other disposition of any such indictment, information or complaint, unless the court shall otherwise order.'

General Laws c. 277, § 72A, is a statute of limited purview, intended to expedite and dispose of charges pending against an individual who is already serving a term of imprisonment. Commonwealth v. Stewart, 361 Mass. 857, 279 N.E.2d 697 (1972). Commonwealth v. Gove, --- Mass. ---, --- ^a, 320 N.E.2d 900 (1974). The charge of which an applicant seeks a speedy disposition must have a status before a particular court (Commonwealth v. Royce, 358 Mass. 597, 599, 266 N.E.2d 308 (1971); Commonwealth v. Gove, supra), and the statute directs that application be made to that court.

Accordingly, we focus initially on the question whether the complaints issued by the District Court were disposed of in accordance with G.L. c. 277, § 72A, following the defendant's application thereunder. The defendant argues that because he signed the application on December 11, 1972 (and immediately forwarded it to the Commissioner of Correction who signed it two days later), and because he was not arraigned in the District Court until June 20, 1973, the six-month period provided by the statute was not complied with. However, G.L. c. 277, § 72A, specifically sets the operative event for the commencement of the six-month period as the time 'such application is received by the court.' The defendant's application was not received by that court until February 13, 1973. The arraignment, which was an effective disposition of the warrants pending in the DISTRICT COURT (COMMONWEALTH V. GOVE, --- MASS.APP. --- , 304 N.E.2D 589 (1973)^B; compare Commonwealth v. Stewart, supra), thus took place within six months of receipt by the court of the defendant's application.

The defendant also directs our attention to the two-month delay between the signing of his application by the Commissioner of Correction on December 13, 1972, and the receipt of the application by the District Court on February 13, 1973. No explanation for the delay appears in the record before us. We see no reason to deviate from the statutory period of six months from receipt in the absence of a showing of purposeful delay on the part of the Commonwealth. See COMMONWEALTH V. KENNEDY, --- MASS.APP. --- , 308 N.E.2D 918 (1974)^C.

Alternatively, if the defendant's application or his motion before the Superior Court to dismiss for failure to grant a speedy trial pursuant to G.L. c. 277, § 72A, (see Commonwealth v. Boyd, --- Mass. ---, --- ^d, 326 N.E.2d 320 (1975)) is taken as imposing a six-month requirement on the Superior Court, the effective date for the commencement of that period was September 21, 1973, when the indictments were returned. See Commonwealth v. Royce, supra, 358 Mass. at 599, 266 N.E.2d 308; Commonwealth v. Stewart, supra. The trial on the indictments began on February 14, 1974, well within six months from the date the indictments were returned.

The defendant's claim of a violation of G.L. c. 277, § 72A, is without merit.

B. In addition to the claim of violation of the statutory right provided by G.L. c. 277, § 72A, the defendant argues that he was denied his right to a speedy trial guaranteed by the State and Federal Constitutions. ³ See Commonwealth v Gove, --- Mass. at --- - --- ^e, 320 N.E.2d 900; Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). For purposes of this discussion, we consider these two constitutional mandates to be analogous. Commonwealth v. Gove, supra, --- Mass. at ---, n. 6 ^f 320 N.E.2d 900. Commonwealth v. Blasser, --- Mass.App. ---, --- ^g, 321 N.E.2d 676 (1975). We follow the two-step analysis employed in Commonwealth v. Gove: 'a preliminary consideration of the time at which the guaranty attaches and a subsequent plenary consideration of the facts in . . . (the) particular case in terms of the criteria by which the constitutionality of delays is judged.' --- Mass. at --- ^h, 320 N.E.2d at 905, citing Dickey v. Florida, supra, 398 U.S. at 41, 90 S.Ct. 1564.

Complaints on all three charges were issued by the District Court on November 30, 1971. The defendant thereby became the 'accused', and his constitutional right to a speedy trial attached at that time. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Commonwealth v. Horan, 360 Mass. 739, 740--741, 277 N.E.2d 491 (1972). Commonwealth v. Gove, supra, --- Mass. at --- - --- ⁱ, 320 N.E.2d 900. The total time period from the date of the complaints until the date of trial on February 14, 1974, covered twenty-six and a half months.

Under the test devised in Barker v. Wingo, four factors are employed in a 'difficult and sensitive balancing process' to determine whether the constitutional mandate of a speedy trial has been complied with. 407 U.S. at 530--533, 92 S.Ct. 2182. COMMONWEALTH V. GOVE, SUPRA, --- MASS. AT --- , 320 N.E.2D 900.^J The factors are the '(l)ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant'. Id. quoting Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. 2182. The factors are accorded equal weight, with '(t)he burden is on the defendant to demonstrate prejudicial delay sufficient to warrant dismissal.' COMMONWEALTH V. GOVE, SUPRA, --- MASS. AT --- , 320 N.E.2D AT 908;^K and cases cited.

The threshold inquiry is whether the delay was of sufficient length to trigger an examination of the other factors. Commonwealth v. Gilbert, --- Mass. ---, --- ^l, 314 N.E.2d 111 (1974); Commonwealth v. Dominico, --- Mass.App. ---, --- ^m, 306 N.E.2d 835 (1974). A twenty-six and a half month delay clearly merits close scrutiny of the defendant's speedy trial claim. See Commonwealth v. Gove, --- Mass. at ---, n. 13 ⁿ, 320 N.E.2d 900. Compare Commonwealth v. Gilbert, supra (31 months); Commonwealth v. Dominico, supra (19 months)

The next factor of the Barker balancing test that we consider is whether the defendant has asserted his right to a speedy trial. Unquestionably, the defendant consistently and energetically pressed his interest on this point. This, in itself, is not enough, however.

In considering the reasons for the delay, we note initially that significant portions of this time are attributable to the defendant. At the time the complaints were issued the defendant had been a fugitive from justice for a period of approximately five and a half months. He apparently remained so until returned to M.C.I., Walpole, on May 10, 1972. ⁴ Certainly, that period must be excluded in any consideration of the delay in bringing the defendant to trial, as he cannot have a speedy adjudication of the charges brought against...