Commonwealth v. Graham
| Decision Date | 13 September 2018 |
| Docket Number | SJC-12433,SJC-12428 |
| Parties | COMMONWEALTH v. Kevin GRAHAM, Jr. (and five companion cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Sarah Montgomery Lewis, Assistant District Attorney (Masai-Maliek King, Assistant District Attorney, also present) for the Commonwealth.
Patrick Levin, Committee for Public Counsel Services, for Kevin Graham, Jr.
Claudia Leis Bolgen, Woburn, for Ellis Golden.
William M. Jay & Gerard J. Cedrone, of New York, & Chauncey B. Wood & Kevin P. Martin, Boston, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.
Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
Rule 36 of the Massachusetts Rules of Criminal Procedure, as amended, 422 Mass. 1503 (1996) ( rule 36 ), provides that, if a criminal defendant is not tried "within twelve months" after arraignment, "he shall be entitled upon motion to a dismissal of the charges." Mass. R. Crim. P. 36 (b) (1) (C). A defendant may establish a prima facie violation of rule 36 by demonstrating that more than twelve months have elapsed between arraignment and trial. See Commonwealth v. Denehy, 466 Mass. 723, 729, 2 N.E.3d 161 (2014). The burden then shifts to the Commonwealth to justify the delay, either by showing that it falls within one of the "excluded periods" enumerated under rule 36 (b) (2) or by showing that "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). "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).
The defendants in these companion cases, Kevin Graham, Jr., and Ellis Golden, were indicted for murder in the first degree. At arraignment, a presumptive trial date was set for June 12, 2017. Thereafter, the parties also scheduled various pretrial events, such as motion hearings and status conferences, but the presumptive trial date did not change, and the trial was never continued. On June 12, the Commonwealth was not ready for trial because of the unavailability of an essential out-of-State witness. The Commonwealth moved to continue the trial so that it would have more time to secure the witness's appearance at trial. The judge denied the motion to continue, finding that the Commonwealth had failed to exercise due diligence in securing the witness's appearance, but agreed to empanel a jury and commence trial one week later if the Commonwealth were able to produce the witness. The Commonwealth was unable to do so.
The defendants subsequently moved to dismiss, as more than one year had elapsed since their arraignments. The Commonwealth opposed the motions, arguing that much of that time should be excluded from the rule 36 calculation, because the defendants had failed to object when the various pretrial events were scheduled and, therefore, had acquiesced in the delay. The judge allowed the motions to dismiss with prejudice on two separate grounds. He concluded that the defendants' right to a speedy trial under rule 36 had been violated, because the defendants could not have acquiesced in any delay where the presumptive trial date never changed. He also concluded that the defendants were entitled to dismissals for the Commonwealth's failure to prosecute.
We vacate the dismissals and remand the cases for trial. We conclude that the judge effectively continued the trial for one week and that, because an essential witness resisted appearing at trial, this period should be excluded under rule 36 (b) (2) (B) or (F), placing the Commonwealth within the time limits of rule 36. We also conclude that the judge abused his discretion in dismissing the indictments for failure to prosecute where the Commonwealth's lack of diligence in producing the witness did not rise to the level that would warrant dismissal, especially where the indictments are for murder, where barely one year had passed since the defendants' arraignments, and where the trial had been continued for only one week.
We also hold that time can be excluded under rule 36 based on a defendant's acquiescence only where the defendant has agreed to or failed to object to a continuance or other delay, and that the scheduling of an event alone does not constitute delay. Thus, a defendant need not object every time an event is scheduled in order to preserve his or her rights under rule 36. We further hold that, where the defendant has acquiesced, a delay can be excluded under rule 36 even where it does not affect the presumptive trial date.2
Background. We summarize the facts as found by the motion judge, supplemented with uncontroverted evidence that was implicitly credited by the judge and is consistent with his ultimate findings. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 431, 35 N.E.3d 357 (2015). We also summarize the prior proceedings, as recorded in the docket and the clerk's minutes. See Commonwealth v. Roman, 470 Mass. 85, 93, 18 N.E.3d 1069 (2014) ().
In the early morning hours of August 12, 2004, Thomas Hawkins (victim) was shot and killed, and his wallet stolen. The police recovered the victim's wallet from a nearby school yard later that day; according to the Commonwealth, the wallet was empty, apart from some personal papers.
The police investigation was unable to identify any material leads in the case until December, 2006, when Juan Garcia offered to provide the police with information about the killing in return for consideration in his pending narcotics case. No agreement was reached at that time with Garcia, and he was subsequently tried and convicted.
However, in 2007 Garcia met with the police again and agreed to testify before a grand jury. In his grand jury testimony, Garcia stated that, at the time of the killing, he heard gunshots and observed two men -- whom he knew and identified as the defendants -- fleeing from the area where the victim's body was found. He also testified that he saw the defendants passing a wallet between themselves, and that Graham was holding a firearm. Garcia told the grand jury that he was cooperating with the Commonwealth in exchange for its support of his motion to revise and revoke the sentence he was serving in his narcotics case. However, no indictments were returned by that grand jury against the defendants, and the Commonwealth apparently did not provide Garcia with the assistance he anticipated.
In 2015, another grand jury was convened to investigate the killing. Because Garcia was then living in Florida, the Commonwealth read his prior grand jury testimony into the record rather than call him to testify. On June 10, 2016, the grand jury indicted the defendants for murder in the first degree, as well as armed robbery and unlawful possession of a firearm.
The Commonwealth's case rested heavily on the testimony of Garcia, the sole identification witness.3 The Commonwealth had no forensic evidence identifying either defendant as the perpetrator of the crimes.
Golden was arraigned on June 20, 2016, and Graham on June 22, 2016. Pursuant to Superior Court Standing Order 2-86, all criminal cases in the Superior Court are required to be assigned to a at arraignment, thereby establishing a presumptive timeline for disposition of the case. See Superior Court Standing Order 2-86, Part III (2009). The defendants' cases were designated as "C" track cases, with the following presumptive schedule: a pretrial conference on July 14, 2016; a first pretrial hearing on December 13, 2016; a final pretrial hearing on June 1, 2017; and a presumptive trial date of June 12, 2017.4
The pretrial conference and first pretrial hearing were held as scheduled. On May 11, 2017, the Commonwealth filed its first motion to continue the presumptive trial date, stating that it needed more time to test deoxyribonucleic acid (DNA) evidence found in the victim's shorts. The motion was denied.
The final pretrial hearing was held as scheduled, on June 1, 2017, and the presumptive trial date of June 12 was confirmed as the actual trial date. On June 8, the Commonwealth informed the court room clerk that it was unable to proceed to trial because it could not secure Garcia's attendance. At a hearing on June 9, the Commonwealth stated that it would file a motion to continue, which it did on June 12, the trial date.
In its motion to continue, the Commonwealth made the following factual representations: Although members of the Boston police department had been "in regular contact" with Garcia since 2015, their last communication with Garcia had been in April, 2017. Once the Commonwealth's first motion to continue was denied on May 11, 2017, the police attempted later that month to contact Garcia to secure his attendance at trial. After several unsuccessful attempts to communicate with Garcia by telephone, the police decided to send an officer to Florida on June 7, but the officer was unable to locate Garcia. On the afternoon of June 8, the officer received a telephone call from Garcia, who, in "a curse laden tirade," accused the officer of going to his workplace and of "harassing" his family members.5 Garcia then told the officer that he did not "want to be bothered any longer regarding these matters." 6
After a nonevidentiary hearing, the judge denied the motion to continue. The judge found that the Commonwealth had failed, "despite clear warning signs," to compel Garcia's attendance through interstate process and that it had therefore failed to exercise due diligence in producing a material witness. However, although he denied the motion to continue, the judge scheduled a "status conference" for June 19, and declared that he would empanel a jury and commence trial on that date if the Commonwealth were "ready to go."
...
To continue reading
Request your trial
-
Vasquez v. Commonwealth
...is a complex process, full of unexpected events and challenges" that can lead to delay for legitimate reasons. Commonwealth v. Graham, 480 Mass. 516, 532, 106 N.E.3d 581 (2018). Nevertheless, where, as here, a defendant has been held without bail for four years while awaiting trial, the len......
-
Commonwealth v. Lougee
...defendant must be brought to trial within one year of arraignment. See Mass. R. Crim. P. 36 (b) (1) (C), (D) ; Commonwealth v. Graham, 480 Mass. 516, 522, 106 N.E.3d 581 (2018). But rule 36 (b) (2) lists certain periods of delay that "shall be excluded in computing the time within which the......
-
Commonwealth v. Pimentel
...26 N.E.3d 1107, quoting Commonwealth v. Fossa, 40 Mass. App. Ct. 563, 567-568, 666 N.E.2d 158 (1996). Accord Commonwealth v. Graham, 480 Mass. 516, 537, 106 N.E.3d 581 (2018) ("dismissals without prejudice would not preclude the Commonwealth from seeking new indictments and prosecuting the ......
-
Commonwealth v. Vil
...437. Rule 36 "creates a means through which [criminal] defendants who desire a speedy trial can secure one." Commonwealth v. Graham, 480 Mass. 516, 522, 106 N.E.3d 581 (2018), quoting Barry, 390 Mass. at 296, 455 N.E.2d 437. Under the rule, "a criminal defendant who is not brought to trial ......