December 28, 2016
MEMORANDUM AND ORDER ALLOWING DEFENDANTS' MOTIONS
TO DISMISS PURSUANT TO RULE 36
Kenneth W. Salinger, Justice
Douglas and Wayne Steed are accused of constructively
possessing a loaded firearm. The police searched a vehicle
and found a loaded handgun under the front passenger seat
where Douglas had been sitting and immediately in front of
the right rear seat where Steed had been sitting. Both men
were indicted for unlawfully possessing a firearm, a loaded
firearm, and the ammunition in the gun.
years passed while the legality of the vehicle search was
litigated. Judge Sanders suppressed the firearm and
ammunition. The Appeals Court affirmed, but the Supreme
Judicial Court granted further appellate review and
reversed. The Superior Court magistrate held a
status conference in July 2016 and scheduled trial for
October 12, 2016. Twelve days before trial the Commonwealth
moved for a continuance so that its ballistician witness
could attend a training program. Defendants objected, but the
trial was continued to January 13, 2017.
now move to dismiss all indictments against them on the
ground that the twelve-month speedy trial time limit imposed
by Mass.R.Crim.P. 36 has been exceeded. The Court concludes
that it must ALLOW these motions because the Commonwealth has
not met its burden of showing that continuing the trial from
October 2016 to January 2017 was justified or required by the
unavailability of an essential witness, and as a result the
Rule 36 speedy trial clock has run out. The Commonwealth has
not proved that the ballistician whose schedule it was
seeking to accommodate was essential (because the
Commonwealth could have proved its case with a substitute
expert witness or with no ballistician at all) or that this
witness was unavailable within the meaning of Rule 36
(because a police department employee is not unavailable
merely because she or he would prefer to go to an
out-of-state training program).
Rule 36 ensures that defendants are brought to trial within a
reasonable time, requiring that a defendant 'shall be
tried within twelve months after the return day in the court
in which the case is awaiting trial.'"
Commonwealth v. Taylor, 469 Mass. 516, 520, 14
N.E.3d 955 (2014), quoting Mass.R.Crim.P. 36(b)(1)(C). "
If the defendant is not brought to trial within one year,
'he shall be entitled upon motion to a dismissal of the
charges.'" Id., quoting Mass.R.Crim.P.
36(b)(1). " The twelve-month period may be tolled,
however, during those periods enumerated by Mass.R.Crim.P.
36(b)(2), or where the defendant acquiesced in the delay, . .
. was responsible for the delay, . . . or benefited from the
delay." Id. at 520-21 (citations omitted).
" The Commonwealth bears the burden of demonstrating
that any period of time should be excluded from the
calculation." Id. at 521.
law, any dismissal of charges " on speedy trial
grounds" under Rule 36 operates as a dismissal with
prejudice, so that " a subsequent prosecution for the
same and any related offense is barred."
Commonwealth v. Balliro, 385 Mass. 618, 624, 433
N.E.2d 434 (1982) (applying Rule 36; accord Commonwealth
v. Fields, 371 Mass. 274, 282, 356 N.E.2d 1211 (1976)
(applying former G.L.c. 277, § 72A, which was superseded
by Rule 36).
speedy trial clock counting down the twelve-month limit
imposed by Rule 36 began to run anew for each defendant on
October 4, 2011, when they were arraigned in the Superior
Court. See, Commonwealth v. Farris, 390 Mass. 300,
304 n.4, 455 N.E.2d 433 (1983); Mass.R.Crim.P. 36(b)(1)(C).
parties agree that the Rule 36 clock was tolled while
Defendants pressed their motion to suppress evidence and the
Commonwealth sought interlocutory review of the suppression
order. See Rule 36(b)(2)(A)(iv) & (v).
parties also agree that the clock ran during three periods,
totaling 328 days, that are attributable to and count against
the Commonwealth. Specifically, they agree that the Rule 36
clock was ticking away: (i) for the 34 days from the
arraignment in Superior Court on October 4, 2011, to November
7, 2011, which was seven days after the pre-trial conference;
and (ii) for the additional 294 days covering two periods
from the allowance of the motion to suppress on March 28,
2012, to the Commonwealth's filing of its notice of
interlocutory appeal on April 4, 2012, and from the SJC's
issuance of its rescript on October 8, 2015, to the status
conference on July 27, 2016, when a new trial date was
parties disagree as to whether the Rule 36 clock was tolled
during three additional periods. The Court concludes that two
of the periods do not count against the Commonwealth because
Defendants acquiesced in those delays. But Defendants
objected to the Commonwealth's motion to further continue
the trial date and the Commonwealth has not shown that the
resulting 75-day delay may be excluded for purposes of
applying Rule 36.
March 8 to March 19, 2012--Continuance of Motion ...