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09/14/77 COMMONWEALTH v. ELLEN G. BECKETT

September 14, 1977

COMMONWEALTH
v.
ELLEN G. BECKETT



Middlesex. Indictment found and returned in the Superior Court on June 16, 1971. A motion to dismiss was heard by Rutledge, J., and the case was tried before him. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Hennessey, C.j., Quirico, Braucher, Kaplan, Wilkins, Liacos, & Abrams, JJ. Liacos, J., Concurring, with whom Abrams, J., joins.

SYLLABUS BY THE COURT

Constitutional Law, Speedy trial, Confrontation of witnesses. Practice, Criminal, Speedy trial, Charge to jury, Directed verdict. Conspiracy. Evidence, Hearsay, Common criminal enterprise. Larceny. False Pretenses.

The opinion of the court was delivered by: Wilkins

A defendant indicted with her husband for conspiracy to commit larceny was not unconstitutionally denied a speedy trial by a delay of fifty-five months between indictment and trial where it appeared that, although the principal reason for the delay was court congestion and the presiding Justices may not have "assigned importance" to the case, some delay apparently was caused by the unavailability of counsel, or a change of counsel, for the husband, and that the defendant failed to show a diligent, or even casual, attempt to obtain a speedy trial, not moving to dismiss the indictment for that cause, until less than three months before trial commenced [331-333]; the evidence offered by the defendant in support of the motion to dismiss did not demonstrate any substantial prejudice to her from the delay, and the Judge was plainly warranted in finding that she was not prejudiced [334-335]. Liacos, J., Concurring, with whom Abrams, J., joined.

At the trial of a wife and her husband for conspiracy to commit larceny by false pretenses from the Commonwealth, by misrepresenting to the Department of Public Welfare that the husband lived apart from his wife and their child with the intent that the wife should receive aid to families with dependent children, there was no constitutional error in the admission in evidence of a statement made during the period of the conspiracy out of the wife's presence to a witness by the husband, who did not testify and which was admissible against him and tending to prove that he was living with his wife during such period, where it appeared that at the Conclusion of the Commonwealth's case in chief the Judge ruled that it had made out a prima facie case of conspiracy and he subsequently charged that a statement of one defendant could be considered against the other if the jury first found that the statement was in furtherance of a common objective to steal from the Commonwealth. [335-341]

At the close of the Commonwealth's case in chief at the trial of an indictment against a wife and her husband for conspiracy to commit larceny by false pretenses, by misrepresenting to the Department of Public Welfare that the husband lived apart from his wife and child with the intent that the wife should receive aid to families with dependent children, the denial of the wife's motion for a directed verdict was justified by evidence that both the wife and her husband knew of the unlawfulness of their receipt of funds from the Commonwealth, that the husband was living with his wife during all or a major portion of the period of the conspiracy, and that the wife and her husband acted in a common endeavor to defraud the Commonwealth. [341-343]

The defendant appeals from her conviction of conspiracy to steal money of a value of more than $100 from the Commonwealth. The charge was based on a claim that the defendant and her husband, Paul S. Beckett, conspired to commit larceny by false pretenses by misrepresenting to the Department of Public Welfare that her husband did not live with the defendant and their daughter, with the intended result that the defendant would appear to qualify for, and thus to receive, aid to families with dependent children (AFDC).

The defendant argues that (1) she was denied her constitutional right to a speedy trial, (2) evidence of an admission made by her husband outside her presence was improperly admitted against her, and (3) her motion for a directed verdict was improperly denied. We transferred the appeal here on our own motion. There was no error.

1. We consider first the defendant's contention that the Judge erred in denying her motion to dismiss the indictment for failure to grant a speedy trial. The indictment was returned in June, 1971. The motion to dismiss was filed on October 31, 1975. Trial commenced on January 20, 1976.

A delay of fifty-five months between indictment and trial is substantial and requires serious consideration whether the defendant was denied a speedy trial in violation of her constitutional rights. This delay is longer than the delay in any other case in which we have held that a defendant's constitutional right to a speedy trial was not infringed. See, e.g., Commonwealth v. Gilbert, 366 Mass. 18, 21 (1974) (thirty-one months); Commonwealth v. Horne, 362 Mass. 738, 739 (1973) (forty-eight months). See also Commonwealth v. Burhoe, 3 Mass. App. Ct. 590, 591 (1975) (thirty-eight months). In Commonwealth v. Green, 353 Mass. 687, 689-690 (1968), we concluded that prejudice was necessarily inherent where the delay was fifteen years, held that the defendant was denied his right to the speedy trial guaranteed by art. 11 of the Declaration of Rights of the Constitution of the Commonwealth, and indicated that the indictments must be dismissed.

In cases involving a claim that a defendant was denied his constitutional right to a speedy trial, we have applied the criteria set forth in Barker v. Wingo, 407 U.S. 514, 530-533 (1972). See, e.g., Commonwealth v. Dabrieo, 370 Mass. 728, 734-738 (1976); Commonwealth v. Boyd, 367 Mass. 169, 179-181 (1975); Commonwealth v. Gove, 366 Mass. 351, 361-365 (1974); Commonwealth v. Gilbert, supra at 21-23. In the Barker case, where the period between indictment and trial was sixty months, the Supreme Court of the United States indicated four factors which should be weighed: (1) the length of the delay; (2) the reasons for the delay; (3) the extent, if any, to which the defendant asserted his right to a speedy trial; and (4) the extent of any prejudice to the defendant resulting from the delay. Barker v. Wingo, supra at 530. The Supreme Court did not conclude that a delay of sixty months was inherently a deprivation of the defendant's rights. Each relevant factor must be weighed in the circumstances of the case. We shall consider the factors, in addition to the length of the delay, which are set forth in Barker v. Wingo, supra at 530.

In this case the principal reason for the delay was court congestion. There is no suggestion that the Commonwealth intentionally delayed the defendant's trial. However, court congestion is not the responsibility of the defendant and must be weighed against the Commonwealth in assessing the reasons for the delay. But the weight to be given to such a cause for delay is not so heavy as a deliberate prosecutorial attempt to delay a trial. Commonwealth v. Dabrieo, supra at 736 n.2 (1976). Commonwealth v. Gove, supra at 363. Commonwealth v. Burhoe, 3 Mass. App. Ct. 590, 594 (1975). Strunk v. United States, 412 U.S. 434, 436-437 (1973). Barker v. Wingo, supra at 531. Although "rowded dockets, the lack of Judges or lawyers, and other factors no doubt make some delays inevitable" (Dickey v. Florida, 398 U.S. 30, 38 [1970]), the deficiencies of the system cannot be a defense to a claim of the denial of a prompt trial. United States v. Fay, 505 F.2d 1037, 1040-1041 (1st Cir. 1974). Another reason for the delay, which the defendant asserted in support of her motion, was the fact that "the presiding Justices have not assigned importance to this case." This circumstance, which is a natural consequence of congested dockets, also must be weighed against the Commonwealth.

Not all the delay, however, was the responsibility of the Commonwealth. Some delay apparently was caused by the unavailability of counsel, or a change of counsel, for her husband, the co-defendant below. At one time the defendant requested a brief continuance because of a change of counsel. On another occasion, the docket shows that the case was taken off the list at the defendant's request. If, as the defendant asserts, this docket entry was in error, the defendant should ...


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