Com. v. Willis

• Decision Date: 02 April 1986
• Citation: 21 Mass.App.Ct. 963,488 N.E.2d 1193
• Parties: COMMONWEALTH v. Ellis C. WILLIS.
• Court: Appeals Court of Massachusetts

Page 1193

488 N.E.2d 1193

21 Mass.App.Ct. 963

COMMONWEALTH v. Ellis C. WILLIS.

Appeals Court of Massachusetts,

Suffolk.

Argued Oct. 17, 1985.

Decided Feb. 21, 1986.

Further Appellate Review Denied

April 2, 1986.

Henry P. Sorett, Boston, for defendant.

Robert N. Tochka, Asst. Dist. Atty., (Thomas Carafa, Legal Asst. to the Dist. Atty., with him), for the Commonwealth.

Before DREBEN, CUTTER and FINE, JJ.

RESCRIPT.

In his appeals from convictions on four indictments charging him with armed robbery and one indictment charging him with armed assault in a dwelling the defendant raises a number of issues. We affirm the convictions but remand the matter for resentencing because the defendant did not have the benefit of counsel at that stage of the proceedings.

1. Denial of a speedy trial. We take our facts mainly from the memorandum of the judge denying the defendant's motion to dismiss. A complaint against the defendant issued from the District Court in Dorchester on April 1, 1980, arising out of an incident which took place on March 22, 1980. A warrant for the defendant's arrest was given to a police officer on the date the complaint issued. At that time the defendant's address was listed as unknown. The warrant was returned without service on December 4, 1980, and there was no other activity in the case until the defendant filed a motion for a speedy trial on September 4, 1981. ¹ He was arraigned on October 27, 1981, indictments were returned on January 7, 1982, and he was tried in October, 1983. The period of delay claimed to be in violation of the defendant's constitutional right to a speedy trial is from April 1, 1980, until the filing of the defendant's motion for a speedy trial in September, 1981. Any delays after the defendant filed his motion were insignificant or acquiesced in by the defendant. See Barry v. Commonwealth, 390 Mass. 285, 298, 455 N.E.2d 437 (1983).

The reason the warrant was not served and the defendant not notified of the charges is that from April 1, 1980, to December, 1981, the defendant was incarcerated in penal institutions of the Commonwealth. Other court proceedings involving the defendant, however, were not neglected by the district attorney for the Suffolk District. ² On April 8, 1980, the defendant was arraigned on another charge in the Roxbury District Court, an indictment was returned on June 11, 1980, and on April 21, 1981, he was sentenced by a Superior Court judge to a sentence which was to run concurrently with a sentence he was then serving at M.C.I., Walpole.

Once the constitutional guaranty of a speedy trial has attached by the issuance of a complaint or indictment, United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971); Commonwealth v. Gove, 366 Mass. 351, 357, 320 N.E.2d 900 (1974), the relevant factors in determining whether a defendant's constitutional right has been denied, see Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972), are: "the length of the delay, the reasons for the delay, the extent of the defendant's assertion of his right to a speedy trial, and the prejudice, if any, to the defendant." Commonwealth v. Edgerly, 390 Mass. 103, 104, 453 N.E.2d 1211 (1983).

We assume for purposes of this appeal that the delay between the issuance of the complaint and the defendant's notification and arraignment is sufficient under Barker, 407 U.S. at 530, 92 S.Ct. at 2192, to trigger the need for a further inquiry.

In this case the defendant's constitutional right under the Barker v. Wingo analysis will be protected by considering the factors entitling the defendant to a dismissal under Mass.R.Crim.P. 36(c), 378 Mass 912 (1979), ³ that is, if "(1) the conduct of the prosecuting attorney in bringing the defendant to trial has been unreasonably lacking in diligence and (2) this conduct on the part of the prosecuting attorney has resulted in prejudice to the defendant."

In denying the defendant's motion, the motion judge found that there was "no evidence in the record" that the district attorney's conduct in bringing the defendant to trial was unreasonably lacking in diligence. The fact that the warrant was returned unserved "suggest[ed] that the defendant's whereabouts remained unknown throughout that period."

A busy prosecuting office may not be able to keep its whole staff informed about all the charges pending at the same time. In the age of centralized probation and correction records, however, we think the Commonwealth should not place undue reliance on the lack of service of the warrant. A prisoner does not forfeit his right to a speedy trial solely because of his incarceration, see Smith v. Hooey, 393 U.S. 374, 379, 89 S.Ct. 575, 577, 21 L.Ed.2d 607 (1969); Commonwealth v. Gove, 366 Mass. at 357, 320 N.E.2d 900. It would not be unduly burdensome for a prosecutor to check central records when complaints or indictments have issued and warrants are returned unserved. See Commonwealth v. Jones, 360 Mass. 498, 501 n. 3, 275 N.E.2d 143 (1971). These records, of course, may not be entirely current, especially where one defendant is charged with a number of offenses at about the same time. The Commonwealth, in the performance of its public trust may have some "duty to coordinate the efforts of its various criminal divisions in attempting to locate a defendant." Brady v. Maryland, 291 Md. 261, 267, 434 A.2d 574 (1981). This is particularly true where, as here, the defendant did not evade authorities, see Commonwealth v. Underwood, 3 Mass.App. 522, 528, 335 N.E.2d 915 (1975), or deliberately provide the police with false information, see Commonwealth v. Anderson, 9 Mass.App. 699, 705, 404 N.E.2d 656 (1980). We note that the same district attorney's office brought the defendant to court on other charges within a week of the issuance of the Dorchester complaint. See People v. Anderson, 127 Misc.2d 808, 811, 487 N.Y.S.2d 454 (1985). Cf. People v. Hill, 402 Mich. 272, 281, 262 N.W.2d 641 (1978), and People v. Woodruff, 105 Mich.App. 155, 160, 306 N.W.2d 432 (1981), aff'd, 414 Mich. 130, 323 N.W.2d 923 (1982) (time is calculated from the time prosecutor should have known that a person is in custody). We are therefore not confident that the prosecutor's office could not have acted with more diligence.

A review of the trial does not, however, substantiate the defendant's claim that his defense was prejudiced. See Commonwealth v. Gove, 366 Mass. at 364, 320 N.E.2d 900. His only claims ⁴ at the time of his motion to dismiss were that the delay caused witnesses' memories to become diminished and that he might have been able to serve his sentence concurrently or to receive less harsh terms of imprisonment had he been tried earlier. See Smith v Hooey, 393 U.S. at 378, 89 S.Ct. at 577; Moore v. Arizona, 414 U.S. 25, 27, 94 S.Ct. 188, 190, 38 L.Ed.2d 183 (1973).

As in Gove, 366 Mass. at 363-365, 320 N.E.2d 900, the defendant has not particularized his claim that he was precluded from making his best defense. We have reviewed the transcript and "find no significant failure of memory on crucial issues," although we recognize that "what has been forgotten can rarely be shown." Commonwealth v. Look, 379 Mass. 893, 903, 402 N.E.2d 470 (1980), in part quoting from Barker v. Wingo, 407 U.S. at 532, 92 S.Ct. at 2193. See Commonwealth v. Beckett, 373 Mass. 329, 335, 366 N.E.2d 1252 (1977). To the contrary, the defendant's witnesses remembered the events of March 22, 1980, remarkably well.

The defendant also has not shown that he was deprived of opportunities for parole, concurrent sentencing, ⁵ or rehabilitation. The element of prejudice to the defendant's defense thus remains speculative and insubstantial. Commonwealth v. Blaney, 5 Mass.App. 96, 100, 359 N.E.2d 958 (1977). Commonwealth v. Jones, 6 Mass.App. 750, 757, 383 N.E.2d 527 (1978). Nor has the defendant shown that the delay affected the other concerns set forth in Barker v. Wingo, 407 U.S. at 532, 92 S.Ct. at 2193, which the speedy trial right was designed to protect. The interests "to prevent oppressive pretrial incarceration [and] to minimize anxiety and concern of the accused" are not significantly implicated, as the defendant was in jail for other crimes and, for most of the period, was unaware of the Dorchester charges.

2. Other claims of error prior to sentencing. The defendant argues that the prosecutor's argument misled the jury as to the defendant's burden of proof and that the judge's instruction on the presumption of innocence compounded the problem. No objection was taken to either the prosecutor's closing or the judge's instruction on this point. A review of the prosecutor's argument and the charge as a whole leaves us convinced that here there was no miscarriage of justice.

The defendant's claims of ineffective assistance of counsel are fully answered by the memorandum of the judge on the defendant's motion for "mistrial, new trial or appropriate relief." Nothing contained in the defendant's pro se brief or in the transcript ⁶ (which we have reviewed) leads us to disagree with the trial judge's assessment that the defendant's trial attorney "was far more competent than the average fallible lawyer and that the defendant did not lack the effective assistance of counsel."

3. Sentencing. At...