Commonwealth v. Green, 0610499
| Decision Date | 22 October 2007 |
| Docket Number | 0610499 |
| Citation | 2007 MBA 435 |
| Parties | Commonwealth of Massachusetts v. Darryl Green |
| Court | Massachusetts Superior Court |
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Gants, Ralph D., J.
On June 1, 2006, the defendant Darryl Green was indicted by a Suffolk County grand jury for the murder of Terrell Gethers ("Gethers") on August 25, 2001. The defendant now moves to dismiss the indictment on the grounds that his rights to a speedy trial under the Sixth Amendment of the United States Constitution and Article 11 of the Massachusetts Declaration of Rights have been violated. The defendant also moves to obtain discovery, which he contends is necessary to establish that his speedy trial rights have been violated. After hearing, the defendant's motion to dismiss is DENIED, as is his motion for discovery related to the motion to dismiss.
On August 29, 2001, four days after Gethers's death, the defendant was one of twelve persons indicted by a federal grand jury in Massachusetts for conspiracy to sell crack cocaine and for the distribution of crack cocaine ("the Narcotics Indictment"). Memorandum of Decision and Order on Motion to Suppress Intercepted and Recorded Statement at 6, Aug. 1, 2007 (Hely, J.) ("Judge Hely Decision"). The defendant was arrested on September 20, 2001 on a federal arrest warrant arising from this federal Narcotics Indictment. Id. at 6-7. According to the defendant's affidavit, which this Court will assume to be true for purposes of this motion, he was arrested by Massachusetts State Police and Brockton Police Department officers and taken to the Boston Police Department headquarters, where he was questioned about the Gethers homicide before being transferred to federal custody, where he remained. On July 17, 2002, while the Narcotics Indictment was still pending, the defendant was indicted by a federal grand jury in Massachusetts on a separate indictment charging him with various crimes under the Racketeer Influenced and Corrupt Organizations Act ("the RICO Indictment"). One of the RICO crimes for which the defendant was indicted alleged that he committed the murder of Gethers in aid of racketeering, which subjected the defendant to the federal death penalty. The Department of Justice chose to seek the death penalty against the defendant for his alleged commission of this murder in aid of racketeering.
The RICO indictment was severed into three trials, with defendants Jonathan Hart and Edward Washington tried first. In order to prove the defendants guilty of any of the racketeering charges, the government needed to prove the existence of a racketeering enterprise. The jury deadlocked on this issue, which necessitated a mistrial. On January 11 2006, District Court Judge Nancy Gertner directed a not guilty verdict under Fed.R.Crim.P. 29 as to Hart and Washington based on the insufficiency of the evidence as to the existence of a racketeering enterprise.
On June 1, 2006, a Suffolk County grand jury indicted the defendant for the murder of Gethers.[1] On or about June 9, 2006, the United States dismissed the federal charges against the defendant under the RICO Indictment. The defendant, however remained in federal custody because he continued to await trial on the Narcotics Indictment. He was scheduled to be arraigned in Suffolk County Superior Court on the murder indictment on September 27, 2006, but the docket reflects that the federal authorities declined to transport him to the Superior Court, so the arraignment was postponed until October 5, 2006, when he was arraigned.
On March 26, 2007, the defendant pleaded guilty in federal court before Judge Mark Wolf to Counts 25 and 26 of the superseding Narcotics Indictment. On June 20, 2007, he was sentenced by Judge Wolf on those counts to time served, plus 48 months of supervised release upon his release from state custody, and was transferred to state custody, where he presently is held awaiting trial on the pending murder indictment.
The defendant argues that his right to a speedy trial attached when he was first arrested by state and local police on September 21, 2001, and that the nearly six years that have passed since that arrest have violated his right to a speedy trial. His contention is legally and logically without merit.
Under Mass.R.Crim.P. 36, a defendant is entitled to a dismissal of the charges against him if he is not brought to trial within the time limits set by the Rule. Mass.R.Crim.P. 36(b)(1). Under this Rule, a defendant "shall be tried within twelve months after the return day in the court in which the case is awaiting trial," excluding the sources of delay identified in the Rule. Mass.R.Crim.P. 36(b)(1) and (2); Commonwealth v. Sigman, 41 Mass.App.Ct. 574, 575 (1996). Therefore, under this Rule, the "speedy trial clock" began to run from the date of his initial appearance in Superior Court on the murder indictment - October 5, 2006. The defendant does not even contend that he is entitled to a dismissal under Mass.R.Crim.P. 36 because the docket plainly reflects excludable delay, such as the time needed to resolve the defendant's motion to suppress his recorded statement, that would justify the failure to resolve this case within twelve months.[2] See Barry v Commonwealth, 390 Mass. 285, 291 (1983) ().
Since the defendant plainly is not entitled to a dismissal on speedy trial grounds if his right to a speedy trial attaches on the date of his arraignment in Superior Court, as provided in Mass.R.Crim.P. 36, the defendant rests his motion to dismiss on constitutional speedy trial grounds, contending that his right to a speedy trial attached on the date of his arrest on August 29, 2001. That arrest, however, was based on a federal warrant arising from the federal Narcotics Indictment; it was not based on a Massachusetts arrest warrant charging him with murder.[3] Therefore, the defendant essentially contends that this Court should treat his date of arrest on the federal Narcotics Indictment as the date on which his right to speedy trial on state murder charges attached. This argument, on its face, is illogical, since the Commonwealth cannot reasonably be asked speedily to bring a defendant to trial on state murder charges before he has been charged with murder in state court.
The defendant seeks to escape this logical problem with two alternative contentions. First, he essentially contends that, at the time the defendant was arrested on the federal Narcotics Indictment, the Commonwealth had sufficient evidence to charge him with Gethers's murder but chose strategically to wait, since he would be held in federal custody anyway on the federal narcotics charges, so his right to a speedy trial attached upon that arrest. Implicit in this contention is that the defendant enjoys some entitlement to be charged with Gethers's murder once the Commonwealth had sufficient evidence to indict him for this crime, since his right to a speedy trial would begin from this moment in time. A defendant plainly enjoys no such entitlement to be charged with a crime at the earliest possible time. See United States v. Picciandra, 788 F.2d 39, 42 (1st Cir. 1986) ("The prosecution has wide discretion in deciding to delay the securing of any indictment in order to gather additional evidence against an individual"). Nor does he enjoy any such entitlement simply because another sovereign (here, the United States) has charged him with another crime (here, narcotics violations). United States v. MacDonald, 456 U.S. 1, 10 n.11 (1982) ().
Second, he essentially contends that, because he was arrested by state and local police on the federal narcotics warrant and questioned about Gethers's murder, this should be treated as an arrest on state murder charges, so his right to a speedy trial should attach from the date of that arrest. The mere fact that a federal arrest warrant was executed by state and local police, working in cooperation with federal law enforcement authorities, has no bearing on when the speedy trial clock commences. Nor does the fact that he was under suspicion for Gethers's murder at that time transform his narcotics arrest into a murder arrest. Although an arrest may trigger the right to a speedy trial, it does so only as to the crime for which the defendant is arrested and eventually tried, not to other crimes which may be suspected and under investigation, but not yet charged, at the time of arrest. See RaShad v. Walsh, 300 F.3d 27, 36 (1st Cir. 2002).
Finally and in the alternative, the defendant contends that, if his right to a speedy trial on the state murder charges did not commence on the date of his arrest on the federal Narcotics Indictment, it certainly commenced on or about July 17, 2002, when he was indicted on the RICO Indictment which charged him with the murder of Gethers in aid of racketeering. This alternative argument suffers from the same fundamental logical flaws. The Commonwealth could not speedily bring the defendant to trial on state murder charges until a state grand jury indicted him on those charges; he could not be tried for murder in a state court simply because a federal grand jury had indicted him for committing the murder in aid of racketeering. Nor does the fact that a...
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