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Commonwealth v. Douglas

Superior Court of Massachusetts, Suffolk

December 27, 2016

Commonwealth
v.
Jason Douglas et al No. 135618

         Filed December 28, 2016

          MEMORANDUM AND ORDER ALLOWING DEFENDANTS' MOTIONS TO DISMISS PURSUANT TO RULE 36

          Kenneth W. Salinger, Justice

         Jason 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.[1]

         Several 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.[2] 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.

         Defendants 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).

         1. Legal Background

          " 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.

          By 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).

         2. Analysis

         The 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).

         The 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).

         The 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; [3] 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 established.

         The 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.

         2.1. March 8 to March 19, 2012--Continuance of Motion ...


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