Commonwealth v. Polanco
| Citation | 92 Mass.App.Ct. 764,94 N.E.3d 869 |
| Decision Date | 20 February 2018 |
| Docket Number | No. 16–P–1217,16–P–1217 |
| Court | Appeals Court of Massachusetts |
| Parties | COMMONWEALTH v. Jorge POLANCO. |
92 Mass.App.Ct. 764
94 N.E.3d 869
COMMONWEALTH
v.
Jorge POLANCO.
No. 16–P–1217
Appeals Court of Massachusetts, Middlesex..
Argued October 11, 2017
Decided February 20, 2018
Murat Erkan, Andover, for the defendant.
Sandra Weisberger, Assistant District Attorney, for the Commonwealth.
Present: Milkey, Massing, & Ditkoff, JJ.
DITKOFF, J.
The defendant, Jorge Polanco, appeals from his Superior Court convictions of trafficking in heroin, G. L. c. 94C, § 32E(c ), and a school zone violation, G. L. c. 94C, § 32J. We must decide whether to consider time spent in District Court when calculating the time to be included for purposes of a speedy trial under Mass.R.Crim.P. 36(b), 378 Mass. 909 (1979), in Superior Court. Consistent with the plain language of the rule, we conclude that the time the charges were pending in District Court should not be included in the calculation. Accordingly, the motion judge properly denied the defendant's motion to dismiss. Rejecting the defendant's challenges to the denial of his motion to suppress and the sufficiency of the evidence, we affirm.
1. Background. In April and May of 2013, law enforcement including the Billerica police department were conducting an investigation of a suspected heroin trafficker known as "Johnny," later identified as the defendant. As part of that investigation, Billerica police conducted controlled narcotics purchases using an informant. When the police approached the sellers in those controlled purchases, the sellers admitted to being "runners" for "Johnny," whom they identified as the source of the narcotics. One of the runners agreed to cooperate with the investigation.
Shortly thereafter, the cooperating runner received a telephone call from "Johnny," directing him to customers at a house located at 48 Rogers Street.1 Prior to that day, that residence had not been a target of the investigation, and the police had not yet identified "Johnny" as the defendant.
The police followed the runner to the residence. A motor vehicle pulled up outside the residence, and two men exited the vehicle and spoke to a woman in the
house's driveway. The runner then approached the three persons and engaged in a hand-to-hand transaction with one of the men. At this point, the police converged on the driveway with other law enforcement agents. The police had not yet confirmed "Johnny's" whereabouts and were not anticipating his immediate arrest.
As the police entered the driveway area, a detective observed the defendant standing several feet inside the open garage. The
defendant, matching the description of "Johnny," turned and fled. The detective gave chase through the garage and into the back yard. The detective believed the defendant to be "Johnny" and feared that he was likely to escape or destroy evidence.
Once in the back yard, the detective apprehended the defendant near the rear fence, facing a shed located in the neighboring yard. The informant and the runner positively identified the defendant as "Johnny." Although no contraband was found on the defendant's person, police retrieved two bags containing 19.06 grams of heroin next to the neighbor's shed. They also found a cellular telephone and over $1,100 in cash in the defendant's possession.
On May 8, 2013, the Lowell District Court issued a complaint charging the defendant with several drug-related offenses and arraigned him that same day. After two months, a District Court judge dismissed the charges for failure to prosecute. Over one year later, on August 7, 2014, a Middlesex grand jury returned indictments arising from the same incident, charging the defendant with trafficking in heroin and a school zone violation. The defendant was arraigned in Superior Court on August 13, 2014.
On October 30, 2014, the defendant moved to dismiss the charges, alleging a violation of rule 36(b) and his constitutional right to a speedy trial,2 and also moved to suppress evidence. Both motions were denied, and the defendant was ultimately convicted of both charges by a jury.
2. Rule 36(b) motion to dismiss. Under rule 36(b)(1)(C), a defendant is entitled to dismissal if he is not brought to trial "within twelve months after the return day in the court in which the case is awaiting trial." See Commonwealth v. Denehy, 466 Mass. 723, 729, 2 N.E.3d 161 (2014) ; Commonwealth v. Pereira, 82 Mass. App. Ct. 344, 346, 973 N.E.2d 679 (2012). The arraignment date is the return date, Mass.R.Crim.P. 2(b)(15), 378 Mass. 844 (1979); Commonwealth v. Fling, 67 Mass. App. Ct. 232, 235, 852 N.E.2d 1137 (2006), and "[t]he filing of a motion to dismiss [on rule 36 grounds] tolls the relevant time period." Commonwealth v. Taylor, 469 Mass. 516, 524 n.15, 14 N.E.3d 955 (2014). Here, the defendant was arraigned in Superior Court on August 13, 2014, and filed his motion to dismiss on October 30, 2014—well within twelve months. If, however, the return day is the date of the District Court arraignment, May 8, 2013, the speedy trial clock expired. This is because the judicial dismissal
in the District Court would not toll the time. Denehy, 466 Mass. at 733–735, 2 N.E.3d 161.
If we were applying the constitutional right to a speedy trial, we would consider the time the charges were pending in District Court. See Commonwealth v. Butler, 464 Mass. 706, 985 N.E.2d 377 (2013). The Supreme Judicial Court in Butler determined that the issuance of a criminal complaint in the District Court is the appropriate start date for purposes of the
defendant's constitutional right to a speedy trial, even where the case is later moved to Superior Court. Id. at 713–714, 985 N.E.2d 377. The constitutional right to a speedy trial, however, is primarily concerned with protecting the rights of a defendant, whereas rule 36(b) is "primarily a management tool, designed to assist the trial courts in administering their dockets." Reporter's Notes to Rule 36, Massachusetts Rules of Court, Rules of Criminal Procedure, at 209 (Thomson Reuters 2017). Accordingly, the contours of the constitutional right are not controlling; "the speedy trial calculus under rule 36 differs from the analysis applied to constitutional claims." Denehy, 466 Mass. at 735 n.18, 2 N.E.3d 161, citing Commonwealth v. Lauria, 411 Mass. 63, 67, 576 N.E.2d 1368 (1991). Indeed, the issue arose in Butler precisely because the defendant's rule 36 claim lacked merit. 464 Mass. at 707 & n.3, 985 N.E.2d 377.3
"In interpreting a rule of criminal procedure, we turn first to the rule's plain language." Denehy, 466 Mass. at 733, 2 N.E.3d 161. The plain language of rule 36 states that the clock begins on "the return day in the court in which the case is awaiting trial" (emphasis supplied). Mass.R.Crim.P. 36(b)(1)(C). Because the case was awaiting trial in the Superior Court when the defendant moved to dismiss, the return date must be calculated from his August 13, 2014, arraignment in that court. The Reporter's Notes to Rule 36(b)(1), supra at 210, are consistent with this conclusion, stating that, "if a defendant is bound over to the Superior Court after a probable cause hearing ... or the Commonwealth elects to proceed by direct indictment in a case commenced by complaint which is within the District Court's jurisdiction ... the time limits of this rule begin anew upon the return day in the Superior
Court."4
As a practical matter, including prior District Court proceedings in rule 36(b) calculations would impose a great burden on the trial courts. Before setting a tracking order, a Superior Court judge would need to calculate the time expired on prior District Court proceedings on every charge, itself a time-consuming and complex exercise, and adjust scheduling to accommodate the timing of District Court proceedings. Rule 36 "is primarily designed to assist in the administration of trial court dockets," Lauria, 411 Mass. at 68, 576 N.E.2d 1368, but this reading of the rule would have the opposite effect. Instead, dockets would have to be coordinated between courts, undermining judges' responsibility to "control their own dockets ... within the time periods specified by rule 36" (emphasis supplied). Commonwealth v. Bourdon, 71 Mass. App. Ct. 420, 428, 883 N.E.2d 958 (2008), quoting from Lauria, supra at 70, 576 N.E.2d 1368.
Of course, in an appropriate case, a defendant has protection against unreasonable
delays in Superior Court indictment by means other than rule 36(b). A defendant may move to dismiss, as was done here and in Butler, under the constitutional right to a speedy trial. A defendant may move to dismiss under Mass.R.Crim.P. 36(c), 378 Mass. 909 (1979).5 Commonwealth v. Sigman, 41 Mass. App. Ct. 574, 580, 671 N.E.2d 1008 (1996). A defendant may move to dismiss on the ground of prejudicial preindictment delay. See Commonwealth v. Dame, 473 Mass. 524, 530–531, 45 N.E.3d 69 (2016). All of...
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