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05/09/78 COMMONWEALTH v. THOMAS M. FASANO

May 9, 1978

COMMONWEALTH
v.
THOMAS M. FASANO



Middlesex. Indictments found and returned in the Superior Court on October 18, 1974, and November 18, 1974. Motions to dismiss were heard by Ronan, J., and the cases were tried before him.

Keville, Grant, & Brown, JJ.

SYLLABUS BY THE COURT

Practice, Criminal, Defendant in custody of another jurisdiction, Detainer. Waiver.

The opinion of the court was delivered by: Grant

A prisoner in Federal custody, who had requested final Disposition of indictments in Middlesex County which had been the subject of a detainer issued under the Interstate Agreement on Detainers, and who was thereafter brought into the Commonwealth under a writ of ad prosequendum for trial of a pending unrelated indictment in Suffolk County and returned to Federal custody at his original place of confinement without any Disposition of the Middlesex indictments, was not entitled thereby to dismissal of the Middlesex indictments under art. IV(e) of the agreement as the writ did not constitute a detainer within the meaning of the agreement. [328-331]

A prisoner who was brought into the Commonwealth pursuant to the Interstate Agreement on Detainers for trial of indictments had, in the circumstances, waived the benefit of art. III(a) of the agreement, requiring that he be brought to trial within 180 days of his request for final Disposition of the indictments, and a motion to dismiss the indictments on this ground was properly denied. [331-334]

The defendant has appealed from his convictions on a mixed bag of indictments for forgery and uttering, larceny, attempted larceny and possession of an altered license to operate motor vehicles which were returned by the grand jury which sat in Middlesex County in October and November, 1974. The only questions argued on appeal arise out of the denial of the defendant's motion to dismiss the indictments under arts. IV(e) and V(c) of the Interstate Agreement on Detainers (Agreement), to which both the Commonwealth (St. 1965, c. 892, § 1) and the United States (Pub. L. No. 91-538, 84 Stat. 1397 [1970]) are parties. The following is a summary of the material facts which can be gleaned from the docket entries, a rather disjointed record, and certain undisputed recitals appearing in the briefs of the parties.

The defendant was duly arraigned on all the indictments. Following various continuances which are of no present moment, the defendant was defaulted on each indictment on November 10, 1975. On February 24, 1976, *fn1 the defendant was sentenced by the United States District Court for the District of Massachusetts to serve a term of two years in prison for an unrelated firearms violation. The first fifteen days of that sentence were served in the Suffolk County (Charles Street) jail, after which the defendant was transferred to the Federal Correctional Institution in Danbury, Connecticut.

On March 19 the district attorney for the Northern District (Middlesex County) forwarded to the warden of Danbury a copy of the capias which had issued out of the Superior Court sitting in Middlesex County by reason of the defendant's defaults, as well as a list (by docket numbers) of all the aforementioned Middlesex indictments. It is agreed that this communication constituted a "detainer" within the meaning of the Agreement and that it was duly received in Danbury. On April 13 the defendant executed a request under art. III(a) of the Agreement for final Disposition of all the Middlesex indictments, and on the same day the warden of Danbury transmitted that request and the certificate of status contemplated by art. III(c) to the district attorney in Middlesex County, with copies of both documents to the clerk of the courts there. The papers were received in both offices on April 20.

On April 27 or 28 the defendant was brought from Danbury to Boston in connection with another unrelated indictment which was then pending against him in Suffolk County, and was lodged in the Charles Street jail. His presence in Boston appears to have resulted from the service on the United States marshal at Boston of a writ of and prosequendum which had issued out of the Superior Court sitting in Suffolk County.

On May 17 the district attorney in Middlesex County forwarded to the warden of Danbury the papers necessary to secure the latter's authorization to release the defendant into the custody of the Massachusetts State police, together with advice that the Middlesex indictments were scheduled for trial on May 21. On May 19 the district attorney in Middlesex was advised by Danbury (apparently by telephone) that the defendant was unavailable by reason of his having been taken to Boston in connection with the Suffolk indictment. It is not disputed that the district attorney in Middlesex had not previously been aware of the Suffolk proceedings; nor is it disputed that he made no effort to secure the defendant's presence in Middlesex during the course of the Suffolk proceedings.

On May 27 the defendant was moved to the Essex County house of correction in Lawrence, where he remained until he was taken back to Danbury on July 15 following the Conclusion of the proceedings in Suffolk. *fn2 On July 23 Danbury released the defendant into the custody of the State police, who lodged him in the Middlesex County house of correction in Billerica. This transfer was for the purpose of honoring the aforementioned request of the defendant for Disposition of the Middlesex indictments. The defendant was brought into the Superior Court sitting in Middlesex County at Cambridge on July 26, at which time all the defaults were removed. Following various continuances which will be discussed in part 2 of this opinion, on November 2 the defendant filed a motion to dismiss all the indictments under arts. IV(e) and V(c) of the Agreement. The motion was heard and denied on the same day. Trial by jury commenced on November 8, and the defendant was convicted on all the indictments on November 10. The defendant served the balance of his Federal sentence at Billerica and was then transferred to the Massachusetts Correctional Institution at Norfolk as a State prisoner to serve the sentences imposed in the present case.

1. Article IV of the Agreement contains provisions by which a prisoner may be brought into a receiving State at the request of a prosecutor therein who wants the prisoner for trial on a pending indictment, information or complaint and who has previously filed a detainer against the prisoner in the sending State. That article concludes: "(e). If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment . . ., such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice" (emphasis supplied).

The first ground of the motion to dismiss was that the Superior Court was required to dismiss all the Middlesex indictments because the defendant had been brought into the Commonwealth on the Suffolk indictment and then returned to Danbury without any Disposition having first been made of any of the Middlesex indictments. There is no evidence that the district attorney for the Suffolk District had ever filed a formal detainer with the warden of Danbury prior to securing the issuance of the writ of ad prosequendum out of the Superior Court sitting in Suffolk County. The Commonwealth points to the portion of art. IV(e) which has been italicized above, points to the procedure by which a prosecutor could secure the presence of a Federal prisoner here prior to the enactment of the Agreement by our Legislature (see G. L. c. 248, ยง 24; Commonwealth v. Domanski, 332 Mass. 66, 71-73 [1954]; Commonwealth v. McGrath, 348 Mass. 748, 750-751 [1965]; Commonwealth v. Swenor, 3 Mass. App. Ct. 65, 67 [1975]), argues that the Suffolk writ was issued pursuant to the prior procedure, argues that that procedure has not been supplanted by the Agreement, and concludes that art. IV(e) of the Agreement has no application to the circumstances of the present case. We add on that side of the scale our own observation that the warden of Danbury, who appears to have been meticulous about the paper work required in connection with ...


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