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11/02/77 COMMONWEALTH v. JOHN L. BURKE

November 2, 1977

COMMONWEALTH
v.
JOHN L. BURKE



Middlesex. Indictment found and returned in the Superior Court on September 11, 1974. The case was tried before Moynihan, J. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Hennessey, C.j., Kaplan, Wilkins, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Practice, Criminal, Speedy trial, Mistrial, Argument by prosecutor.

The opinion of the court was delivered by: Abrams

Where the defendant himself initiated the process of his return to the Commonwealth for Disposition of an indictment pending against him, rather than being returned as a result of the Commonwealth's efforts, the Commonwealth was required to try him within 180 days in accordance with art. III of the Interstate Agreement on Detainers rather than the 120 days required by art. IV. [570-572]

At a criminal trial, an improper question by the prosecutor was not prejudicial where the witness was not allowed to give his response. [573-574]

At a criminal trial, references by a prosecutor in his closing argument to evidence which had been excluded and remarks concerning the character of the defendant, who had not taken the stand, were so prejudicial to the defendant as to require a new trial. [574-577]

John L. Burke (defendant) was convicted, after a jury trial, on an indictment charging armed robbery. He appeals that conviction pursuant to G. L. c. 278, §§ 33A-33H, and claims as reversible error (1) the denial of his motions for mistrial, particularly the motion which was made during the Commonwealth's summation, and (2) the denial of his motion to dismiss for lack of speedy trial as guaranteed by the Agreement on Detainers (the agreement). St. 1965, c. 892, § 1. Though we find the defendant's speedy trial claim to be meritless, we conclude that the prosecutor's closing argument, viewed in its entirety, exceeded permissible bounds. Accordingly, we reverse the conviction and remand for a new trial.

1. Speedy Trial.

While the defendant was incarcerated in the Federal Correctional Institution, Tallahassee, Florida, a detainer, based on the indictment charging him with the instant armed robbery, was lodged against him. Invoking the provisions of the Interstate Agreement on Detainers, the defendant, on March 28, 1975, made a written request for final Disposition of the pending indictment. His request, a certificate of inmate status, and an offer of temporary custody were forwarded by the warden of the Federal institution to the Commissioner of Correction, the district attorney for the Northern District, and the clerk of the courts for Middlesex County. On May 5, 1975, the defendant was transferred to Massachusetts, was arraigned, and entered a plea of not guilty.

Although the defendant's case was assigned to a trial session on June 24, 1975, it was not reached during the June sitting. On July 3, 1975, the Commonwealth moved to extend the 120-day period allotted by art. IV (c) of the agreement for the commencement of trial. It was believed by the parties that such period would expire on September 5, 1975. The motion was granted and the defendant was brought to trial on September 16, 1975.

On the day of trial the defendant filed a motion to dismiss on the ground that he was denied a speedy trial because the Commonwealth had failed to initiate its prosecution within the time limit established by art. IV (c) of the agreement. The defendant conceded that the agreement provides for extensions of time "for good cause shown," but he argued that the reasons advanced by the Commonwealth as justification for the July 3 continuance failed as matter of law to meet that statutory standard. Therefore, since he was not brought to trial within 120 days, he was entitled to dismissal of the indictment. See art. V (c) of the agreement ("n the event that an action on the indictment . . . is not brought to trial within the period provided . . ., the appropriate court of the jurisdiction where the indictment . . . has been pending shall enter an order dismissing the same with prejudice . . . ."). His motion was denied. *fn1

The parties and apparently the Superior Court Judge have regarded the provisions of art. IV of the agreement as controlling the Disposition of the speedy trial claim. That section of the agreement operates when the demanding State itself seeks to obtain custody of the accused from the confining State. In such circumstances, the defendant must be tried within 120 days from the time he is delivered to the demanding State. However, where, as here, *fn2 the defendant himself initiates the process of his return to the demanding State for resolution of the outstanding charge, art. III of the agreement provides that the defendant must be tried within 180 days from the time "he shall have caused to be delivered . . . his ...


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