Com. v. Xiarhos

• Decision Date: 06 May 1974
• Citation: 2 Mass.App.Ct. 225,310 N.E.2d 616
• Parties: COMMONWEALTH v. Vangel XIARHOS.
• Court: Appeals Court of Massachusetts

Page 616

310 N.E.2d 616

2 Mass.App.Ct. 225

COMMONWEALTH v. Vangel XIARHOS.

Appeals Court of Massachusetts, Bristol.

Argued Oct. 17, 1973.

Decided May 6, 1974.

James Seligman, Fall River, for defendant.

Augustus F. Wagner, Jr., Asst. Dist. Atty., for the Commonwealth.

Before ROSE, KEVILLE and GOODMAN, JJ.

ROSE, Justice.

The defendant was convicted after a jury trial on two indictments charging him with unlawful possession of heroin (G.L. c. 94, § 212, as appearing in St.1958, c. 95, § 2) and on an indictment charging him with unlawful possession of heroin with intent to sell (G.l. c. 94, § 212A, as appearing in St.1960, c. 204, § 1). ¹ The defendant took exception to the denial of motions (1) to dismiss the indictments for lack of a speedy trial; (2) to hold the trial under the provisions of G.L. c. 278, §§ 33A--33G; (3) for a directed verdict on one of the indictments returned under § 212; and (4) for a directed verdict on the indictment returned under § 212A. Other exceptions were not argued in the defendant's brief, and we do not consider them here. Rule 1:13 of the Appeals Court (1972).

The facts as set forth in the defendant's substitute bill of exceptions are as follows. On August 13, 1971, police officers searched an automobile which the defendant had been driving and discovered seventeen glassine bags containing heroin concealed in the back seat. At approximately the same time, while searching the closet of an apartment which the defendant had been seen to frequent, police found a vial containing heroin. Both searches were conducted pursuant to search warrants the validity of which is not questioned here. Complaints were issued charging the defendant with unlawful possession of the heroin found in the car, with unlawful possession of the same with intent to sell, and with unlawful possession of the heroin discovered in the apartment. Those complaints were dismissed after a grand jury returned indicatments on each charge.

1. We are of the opinion that one of the convictions relating to the heroin discovered in the automobile is invalid in light of the decision in KUKLIS V. COMMONWEALTH, --- MASS. ---, 280 N.E.2D 155 (1972)^A. The defendant's failure to raise this objection at trial is excusable as the Kuklis case was decided about a month after his trial was held.

Kuklis was found guilty of complaints charging him with unlawful possession of marihuana (G.L. c. 94, § 205, as appearing in St.1958, c. 95, § 1) and being present where a narcotic drug was illegally kept (G.L. c. 94, § 213A, as appearing in St.1960, c. 204, § 2) and in addition was bound over and indicted for unlawful possession of marihuana with intent to sell (G.L. c. 94, § 217B, as appearing in St.1960, c. 204, § 3). All three charges related to a single incident in which the defendant was arrested in a room in which marihuana was discovered. The court reasoned that because 'the same time, place and type of drug were alleged in each charge, the indictment for possession with intent to sell expressed no more than an aggravated form of simple possession.' KUKLIS V. COMMONWEALTH, --- MASS. ---, 280 N.E.2D 155 (1972)^B. Finding that it was not the Legislature's intent to permit multiple convictions on identical charges, the court dismissed the complaints against the defendant for unlawful possession of, and being in the presence of, marihuana while affirming his conviction on the most serious charge, that of unlawful possession of marihuana with intent to sell.

The two indictments against the present defendant relating to the heroin found in the automobile involve a single place and type of drug. We believe that they meet the test of identity set forth in the KUKLIS CASE AT ---, 280 N.E.2D 155.^C Accordingly, we vacate the sentence on the defendant's indictment for unlawful possession of the heroin found in the automobile and order that the indictment which charges that offense be dismissed.

2. The facts pertinent to the defendant's contention that he was denied a speedy trial may be summarized as follows. On August 13, 1971, the defendant was arrested. On August 14 he was arraigned in a District Court and his case was continued to September 27 with his consent. On the latter date it was agreed ² that the case would be continued for trial on November 4. On that date the parties appeared, ready for trial, but were advised by the presiding judge that the crowded state of the District Court docket necessitated that the case be continued to December 8. The defendant objected on the ground that a further continuance would permit the district attorney to obtain grand jury indictments, preventing the case from being tried in the District Court. The defendant's counsel also gave the prosecuting officer a note requesting that the district attorney's office be contacted and asked not to have any 'direct indictments' returned in the case. The district attorney's office received the request, but it was not granted. Indictments on each of the charges were returned on November 11, 1971. Before the commencement of trial in the Superior Court the defendant moved to dismiss the indictments, arguing that he had been denied his right to a speedy trial as guaranteed by art. 11 of the Declaration of Rights and by the Sixth Amendment to the Constitution of the United States. The motion was denied, subject to his exception.

The defendant argues that the judge's decision to continue his case from November 4 to December 8, 1971, was made in violation of G.L. c. 276, § 35, which provides in relevant part that a judge 'may adjourn an examination or trial from time to time, not exceeding ten days at any one time against the objection of the defendant . . ..' The defendant seeks to add a constitutional dimension to his argument by suggesting that § 35 represents an effort by the Legislature to define more narrowly the nature of a defendant's right to a speedy trial. See Barker v. Wingo, 407 U.S. 514, 523, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). We need not consider this contention as we are of the opinion that § 35 was not violated in this case: Although a continuance of the length ordered by the judge might have been invalid under that section, the continuance of the defendant's case in fact extended for only seven days, until November 11, 1971, when indictments against him were returned. Compare COMMONWEALTH V. STEWART, --- MASS. ---, 279 N.E.2D 697^D (1972). We discern no violation of the defendant's rights under § 35.

The defendant also contends that his right to a speedy trial was violated by the district attorney's action in obtaining indictments against him. He suggests that if the complaints under § 212 had been tried in the District Court, final judgments on those charges could have been rendered as early as December 8, 1971. ³ As the pendency in the District Court of a matter over which that court can exercise final jurisdiction does not prevent the grand jury from returning an indictment for the same offense (Klous v. Judges of the Municipal Court, 251 Mass. 292, 295--296, 146 N.E. 783 (1925); see Commonwealth v. Buck, 285 Mass. 41, 43, 188 N.E. 613 (1933)), the defendant cannot maintain that the Commonwealth had no right to proceed by indictment in his case. We do not believe that the period of time from December 8, 1971 (the date on which the complaints might have been tried in the District Court), to the commencement of the defendant's trial in early February, 1972, ⁴ or the total lapse of less than six months between the defendant's arrest and his trial, constituted a 'presumptively prejudicial' delay within the meaning of Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. 2182. It is therefore unnecessary for us to consider the other factors set forth in Barker v. Wingo, to wit, the reason for delay, the defendant's assertion of his right to a speedy trial, and the prejudice which might have resulted from the delay. ⁵

3. The defendant moved at the commencement of his trial that it be held under G.L. c. 278, §§ 33A--33G. The motion was taken under advisement by the judge and, at the conclusion of the trial, was denied. The defendant took exception to its denial.

With regard to the timing of the judge's ruling, we do not believe that it was the Legislature's intent to foreclose the granting of such an order after the conclusion of trial. See Commonwealth v. Silvia, 343 Mass. 130, 133, 177 N.E.2d 571 (1961). As regards the correctness of the ruling, we note that the application of §§ 33A--33G to the trial of felonies other than murder and manslaughter is within the court's discretion (Commonwealth v. King, 356 Mass. 495, 497, 253 N.E.2d 863 (1969), and cases cited) and find no abuse thereof in this case.

The defendant also argues that the decision not to make the trial subject to §§ 33A--33G resulted in 'great post-conviction delay' despite his 'diligent efforts . . . to accelerate these matters.' We find nothing in the record to support this assertion and conclude that this exception is without merit. ⁶

4. The defendant also took exception to the denial of his motion for a directed verdict on the indictment for unlawful possession of the heroin found in his apartment, arguing that the evidence of his knowledge of and control over the drug was insufficient to warrant the submission of the indictment to the jury. See Commonwealth v. Buckley, 354 Mass. 508, 238 N.E.2d 335 (1968); Commonwealth v. Harvard, 356 Mass. 452, 458, 253 N.E.2d 346 (1969); United States v. Weaver, 148 U.S.A.pp.D.C. 3, 458 F.2d 825, 826--827 (1972).

The evidence was, in relevant part, as follows. A vial containing heroin was found in the closet of an apartment which had previously been rented by the defendant and of which he was then a 'current tenant.' At the time of the defendant's arrest his mother and sister also lived in the apartment. In the course of almost daily police observation during the month preceding his arrest, the defendant was seen to enter and...