Com. v. Vasquez

• Decision Date: 26 July 2002
• Docket Number: No. 00-P-910.,00-P-910.
• Parties: COMMONWEALTH v. Raul VASQUEZ.
• Court: Appeals Court of Massachusetts

Page 60

772 N.E.2d 60

55 Mass. App. Ct. 523

COMMONWEALTH v. Raul VASQUEZ.

No. 00-P-910.

Appeals Court of Massachusetts, Suffolk.

Argued January 18, 2002.

Decided July 26, 2002.

COPYRIGHT MATERIAL OMITTED

Daniel J. Bennett, Boston, for the defendant.

Kajal K. Chattopadhyay, Assistant District Attorney, for the Commonwealth.

Present: GREENBERG, KAFKER, & COHEN, JJ.

GREENBERG, J.

On June 10, 1999, nearly four years after numerous indictments were handed down, Raul Vasquez was convicted of two counts of rape of a child under sixteen, two counts of assault with intent to rape a child under sixteen, and one count of rape. Vasquez appeals, claiming that his motion to dismiss on speedy trial grounds was erroneously denied; that his trial counsel was constitutionally ineffective in failing to inform him that his speedy trial rights were being waived each time an agreed-upon continuance was granted without his presence in court, and in failing to file a second motion to dismiss on speedy trial grounds; and that a substantial risk of a miscarriage of justice resulted from the trial judge's failure to instruct on whether Vasquez honestly and reasonably believed that the victim had assented to the alleged sexual encounters in this case. He also appeals from the denial of his motion for new trial. The appeals have been consolidated by this court. We affirm.

1. Rule 36 analysis. Between August 16, 1995, when Vasquez was arraigned, and September 9, 1998, when he filed his motion to dismiss on speedy trial grounds, 1,119 days passed.¹ These events, the arraignment and the filing of the speedy trial motion, are initial markers for calculating the total number of days that lapsed for purposes of Mass. R.Crim.P. 36, 378 Mass. 909 (1979). Commonwealth v. Spaulding, 411 Mass. 503, 504 n. 3, 505 n. 4, 583 N.E.2d 1257 (1992). Rule 36(b)(1) has been read as requiring the prosecution to go forward with a defendant's trial within one year (365 days) of arraignment, otherwise the defendant is "presumptively entitled to dismissal of the charges unless the Commonwealth justifies the delay." Id. at 504, 583 N.E.2d 1257. Deducting 365 from the 1,119 days that passed before Vasquez filed his speedy trial motion leaves 754 days for the Commonwealth to justify. "[D]elay may be excused by a showing that it falls within one of the `[e]xcluded [p]eriods' provided in rule 36(b)(2), or by a showing that the defendant acquiesced in, was responsible for, or benefited from the delay" (emphasis supplied). Ibid. See Barry v. Commonwealth, 390 Mass. 285, 295, 455 N.E.2d 437 (1983).

The Commonwealth's main argument is that the long period between March 7, 1996 (when the Superior Court issued a supplemental order to the Department of Social Services [DSS] to produce certain records requested by Vasquez), and December 24, 1998 (when DSS's second and final production was made available to Vasquez by the court), should be excluded because it ultimately benefited Vasquez, and he acquiesced in numerous continuances in the interim. Vasquez responds by conceding some of these continuances while simultaneously contending that fault for the remainder of this time lies primarily with the Commonwealth, despite his failure to object. He cites Commonwealth v. Spaulding, where the Supreme Judicial Court emphasized, "we have never held that rule 36 time does not begin to run until the defendant first makes an objection. Such a holding would upset the balance of obligations envisioned by the rule, under which the `primary responsibility for setting a trial date lies with the district attorney.'" 411 Mass. at 506, 583 N.E.2d 1257, quoting from Barry v. Commonwealth, 390 Mass. at 296 n. 13, 455 N.E.2d 437. Compare Commonwealth v. Fleenor, 39 Mass.App.Ct. 25, 27, 652 N.E.2d 899 (1995) (citing Spaulding and emphasizing defendant's obligation to object). At oral argument, appellate counsel for Vasquez, who also filed the motion for new trial but was not trial counsel, clarified his position by asserting that we should hold the Commonwealth responsible for the long delay caused by DSS's tardy efforts at production.²

In analyzing Vasquez's appeal, we are initially met with the affidavits he submitted with his motion for new trial.³ Those affidavits supported Vasquez's arguments concerning trial counsel's alleged ineffectiveness in not informing him of the ramifications of not being in court to agree to continuances, and in not submitting a second motion to dismiss on speedy trial grounds. Although he does so now, Vasquez did not attempt to raise the denial of his speedy trial motion in his motion for new trial. All of these issues are nonetheless intertwined, and therefore relevant to our consideration of his consolidated appeals. In addition, the judge who ruled on Vasquez's new trial motion essentially denied it for the reasons stated by the judge who originally denied the speedy trial motion, even though the new trial motion raised those issues in the somewhat distinct framework of ineffective assistance of counsel.

"[W]e are in as good position as the judge[s] below to decide whether the time limits imposed by [rule 36] have run." Barry v. Commonwealth, 390 Mass. at 289, 455 N.E.2d 437. Therefore, "while we will give deference to the determination[s] made by the judge[s] below, we may reach our own conclusions." Id. at 290, 455 N.E.2d 437. In particular, we think that the judge addressing Vasquez's motion for new trial would have been justified in not crediting his suspiciously tardy, self-serving, inconsistent, and conclusory affidavits. See note 3, supra; Commonwealth v. Wheeler, 52 Mass.App.Ct. 631, 639-640, 756 N.E.2d 1 (2001). We also note that, with only one exception not dispositive here, Vasquez has made no attempt to supplement the docket or contend, broadly, that it did not accurately disclose the diligence of either side, or lack thereof, in bringing his case to trial. See Commonwealth v. Mattos, 404 Mass. 672, 676-677, 536 N.E.2d 1072 (1989); Commonwealth v. Wysocki, 28 Mass.App.Ct. 45, 48, 546 N.E.2d 177 (1989).

Vasquez's attempts to align this case with Commonwealth v. Spaulding are unsuccessful; there, no argument was made by the Commonwealth that the defendant benefited from the delay. 411 Mass. at 509, 583 N.E.2d 1257. Here, on the other hand, the Commonwealth correctly points out that Vasquez ultimately did receive the records he requested from DSS. Moreover, trial counsel in this case was not gripped by inertia while waiting for the records requested from DSS; another motion to dismiss was filed with respect to the charges under G.L. c. 272, § 29, as well as an offer of proof to assist the Superior Court in its review of DSS's records. Vasquez was also afforded additional time to investigate possible defenses and produce material potentially helpful to his defense. Hence, regardless of whether Vasquez agreed to or acquiesced in the long delay between March 7, 1996, and September 9, 1998, he clearly benefited from it. See Barry v. Commonwealth, 390 Mass. at 295, 455 N.E.2d 437; Commonwealth v. Farris, 390 Mass. 300, 305, 455 N.E.2d 433 (1983); Commonwealth v. Lauria, 411 Mass. 63, 68, 71, 576 N.E.2d 1368 (1991).

On the record before us, there is also no reason for us to hold the Commonwealth responsible for DSS's long delay in completing the requested production. There is no showing of any connection between DSS's delay and the Commonwealth; rather, complicated privileges and procedures and additional agencies are involved in the requested production. As noted by the judge who originally heard Vasquez's speedy trial motion, while DSS has a legal obligation to investigate allegations of child abuse and transmit a report to the district attorney if it finds reasonable cause to believe that the child was sexually exploited, it does not conduct its investigation on behalf of the district attorney or at that office's direction. See G.L. c. 119, § 51B. Moreover, except for the information contained in that report, other DSS records are protected from disclosure through certain evidentiary privileges. Compare, e.g., G.L. c. 112, § 135A (social worker-client privilege), with G.L. c. 119, §§ 51A & 51B (exempting from G.L. c. 112, § 135A, privileged information that comprises abuse report). Apart from those records disclosed in the abuse report, DSS also has an obligation to secure the confidentiality of its other records, even from the district attorney. Further logistical and security concerns appear, as well, when DSS transfers custody of its records, or copies, to the courts, which the Bishop-Fuller⁴ screening procedures only begin to allay.⁵ See, e.g., Commonwealth v. Tripolone, 425 Mass. 487, 488-489, 681 N.E.2d 1216 (1997); Commonwealth v. Pare, 427 Mass. 427, 429-433, 693 N.E.2d 1002 (1998). See also Commonwealth v. Sheehan, 435 Mass. 183, 755 N.E.2d 1208 (2001).

We therefore exclude the entire time between March 7, 1996, and September 9, 1998, a total of 917 days. Mass.R.Crim.P. 36(b)(3). When subtracted from the 1,119 days that passed between Vasquez's arraignment and the filing of his speedy trial motion, we see clearly that the Commonwealth was well within the one year allowed under rule 36.⁶

2. Alleged deprivation of Vasquez's constitutional right to a speedy trial. Rule 36 of the Massachusetts Rules of Criminal Procedure, captioned "Case Management," is "wholly separate from the defendant[`s] constitutional right to a speedy trial." Commonwealth v. Lauria, 411 Mass. at 67, 576 N.E.2d 1368. Here, the nearly four-year delay between Vasquez's arraignment in August, 1995, and his trial in June, 1999, warrants a further, discrete inquiry. See Barker v. Wingo, 407 U.S. 514, 530-533, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Commonwealth v. Edgerly, 390 Mass. 103, 104, 453 N.E.2d 1211 (1983). We consider, in addition to the length of the delay, the reasons behind it, the extent of Vasquez's assertion of his right to a speedy trial, and the...