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07/20/78 COMMONWEALTH v. WILLIAM D. ANDERSON

July 20, 1978

COMMONWEALTH
v.
WILLIAM D. ANDERSON



Essex. Indictments found and returned in the Superior Court on January 8, 1975. A pretrial motion to dismiss was heard by Adams, J., and the cases were tried before Linscott, J.

Hale, C.j., Grant, & Armstrong, JJ.

SYLLABUS BY THE COURT

Practice, Criminal, Speedy trial. Constitutional Law, Speedy trial.

The opinion of the court was delivered by: Hale

A bind-over hearing in a District Court, held within six months of the defendant's request for a speedy trial pursuant to G. L. c. 277, § 72A, constituted a Disposition of the District Court complaints as required by that statute. [495-496]

A lapse of thirty-eight months from the time complaints were issued against a defendant and the time he was brought to trial on indictments resulting from the complaints did not constitute a denial of the defendant's constitutional right to a speedy trial where a delay of one year between his arraignment in the Superior Court and the trial was attributable to the defendant's requests for discovery and where it did not appear the defendant was prejudiced by the delay. [496-498]

The defendant, having been convicted of armed robbery (G. L. c. 265, § 17) and assault with a dangerous weapon with intent to murder (G. L. c. 265, § 18), *fn1 argues only that the Judge erred in denying his motion to dismiss, based on his claims that he was denied his right to a speedy trial guaranteed by the United States Constitution and as provided in G. L. c. 277, § 72A. *fn2 The trial and pretrial proceedings were governed by G. L. c. 278, §§ 33A-33G. There was no error.

The following is a chronology of the events which occurred between January 5, 1973, when the original complaints were issued, and March 8, 1976, when the trial began in the Superior Court sitting in Essex County. There is little dispute between the parties as to those events. The incident leading to the instant charges occurred on December 18, 1972. The next day the defendant was arrested on separate armed robbery charges in New Hampshire. On February 16, 1973, he pleaded guilty to those New Hampshire charges and was given a sentence of two to five years in New Hampshire State Prison. At that time he had various robbery and drug charges pending against him in almost every District Court in Essex County and in the Superior Court as well. Warrants on some of those charges, not including the ones here in issue, were lodged against him at the New Hampshire prison. The defendant filed a request under the interstate Agreement on Detainers (St. 1965, c. 892) (Agreement) for Disposition of all indictments, informations and complaints "on the basis of which detainers have been lodged against me . . . ." We note that this request was not applicable to the instant charges, in that no detainer concerning any of them had been lodged with the New Hampshire authorities. Furthermore, on May 8, 1973, subsequent to filing the request, the defendant escaped from New Hampshire State Prison, thereby voiding his request. See Agreement, Article III(f).

He was taken into custody on May 11, 1973, in Massachusetts and held here for two months, during which he resisted rendition to New Hampshire and also appeared as a defendant once in the Superior Court sitting in Essex County and three times in the District Court in Salem. In July, 1973, he was returned to New Hampshire to continue serving his sentence, but in September was brought back to Massachusetts to face other charges in the Superior Court sitting in Essex County and in two District Courts. In February, 1974, the defendant pleaded guilty in the Superior Court to a charge of armed robbery and was sentenced to five to seven years in the Massachusetts Correctional Institution at Walpole (Walpole), to be served from and after the sentence he was then serving in New Hampshire. Four other criminal matters were placed on file at the same time.

On May 8, 1974, the defendant was brought to Walpole to begin serving the Massachusetts sentence which had been imposed the previous month. He was informed in June that the instant charges remained outstanding in the District Court of Southern Essex and on June 26 filed a request for a speedy trial with the Commissioner of Correction pursuant to G. L. c. 277, § 72A. In September, 1974, the defendant was brought into that court for a probable cause hearing, which resulted in his being bound over for the grand jury. After the indictments were returned on January 8, 1975, the defendant was arraigned in the Superior Court, and an appearance was filed by his present counsel.

On February 4, 1975, the defendant's motions for the grand jury minutes and a list of government witnesses were allowed. A week later the defendant filed the motion to dismiss for lack of a speedy trial, the denial of which is the basis of this appeal. On February 18, 1975, the case was called for trial. At that time the defendant's counsel told the Judge that he had not received the transcript of the grand jury minutes which (he said) was necessary in order for him to prepare the defense and that he did not want to go to trial without them. The prosecutor assured the Judge that the minutes had been ordered, and the case was continued generally. On three separate occasions between February 21, 1975, and January 7, 1976, the prosecutor wrote to the stenographer (who apparently was not an official stenographer; see G. L. c. 221, §§ 82 and 86) requesting the grand jury minutes. He sent copies of those letters to the defendant's counsel. A motion for a speedy trial was filed on January 6, 1976, and allowed on January 14, 1976. On January 20, 1976, the grand jury minutes were delivered to counsel.

On February 10, 1976, a hearing was held on the motion to dismiss for lack of speedy trial which the defendant had filed a year earlier. The Judge found that the Commonwealth was prepared for trial on February 18, 1975, that the Commonwealth had been sufficiently diligent in trying to procure the grand jury minutes from the stenographer, and that there had been purposeful delay on the part of the Commonwealth in bringing the defendant's case to trial. The Judge then denied the motion to dismiss. On February 20, 1976, there was a hearing on the defendant's motion to suppress an identification of him. That motion was also denied. Trial began on March 8, 1976, and the defendant was found guilty on March 11.

Claim Under G. L. c. 277, § 72A.

We consider first the defendant's claim under G. L. c. 277, § 72A. As the bind-over hearing in the District Court in September, 1974 (the defendant's request had been submitted in June, 1974), was a Disposition of the District Court complaints well within the six-month period, it satisfied the requirements of the statute. Commonwealth v. Stewart, 361 Mass. 857, 858 (1972). Commonwealth v. Fields, 371 Mass. 274, 282-283 n.11 (1976). Commonwealth v. Ambers, 4 Mass. App. Ct. 647, 650 (1976). There being no valid request pursuant to § 72A in the Superior Court, *fn3 the only issue is whether the defendant was denied his right to a speedy ...


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