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Commonwealth v. Davis

Appeals Court of Massachusetts, Suffolk

June 2, 2017


          Heard: September 12, 2016.

         Complaint received and sworn to in the Roxbury Division of the Boston Municipal Court Department on March 16, 2012.

         After transfer to the Central Division of the Boston Municipal Court Department, a motion to dismiss was heard by Robert J. McKenna, J.

          Matthew T. Sears, Assistant District Attorney (Lindsey E. Weinstein, Assistant District Attorney, also present) for the Commonwealth.

          Patrick Levin, Committee for Public Counsel Services, for the defendant.

          Present: Agnes, Neyman, & Henry, JJ.

          HENRY, J.

         Seven hundred and forty-two days after Nasahn Davis was arraigned in the Boston Municipal Court on charges of carrying a firearm without a license in violation of G. L. c. 269, § 10 (a.), he filed a motion to dismiss under Mass.R.Crim.P. 36(b), 378 Mass. 909 (1979). That rule provides that a criminal defendant who is not brought to trial within twelve months of the "return day, " here the arraignment, "is presumptively entitled to dismissal of the charges unless the Commonwealth justifies the delay." Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). "The delay may be excused by a showing that it falls within one of the '[e]xcluded [p]eriods' provided in rule 36 (b) (2), or by a showing that the defendant acquiesced in, was responsible for, or benefited from the delay." Ibid. Accord Barry v. Commonwealth, 390 Mass. 285, 292, 298 n.17 (1983). "A failure to object to a continuance or other delay constitutes acquiescence." Commonwealth v. Tanner, 417 Mass. 1, 3 (1994).

         The defendant's motion to dismiss was allowed; on appeal, the Commonwealth contends that only eighty-one of the 742 days since arraignment are includable in the rule 36 calculation, contending, among other things, that 268 days of delay attributable to court congestion when both sides were ready for trial must be excluded. We conclude that delays attributable to court congestion -- if the defendant objects -- are not excludable from the rule 36 calculation, unless the judge makes the necessary findings under rule 36(b)(2)(F). Because the Commonwealth cannot justify the delays in excess of the 365-day limit, we affirm the order allowing the defendant's motion to dismiss.


         The parties agree that the number of days that elapsed between the defendant's arraignment on March 19, 2012, and the date on which he filed his motion to dismiss, March 31, 2014, is 742 days.[1] Subtracting twelve months (365 days) from this total, as well as the 218 days the parties agree are excluded from the calculation, [2] leaves 159 days for which the Commonwealth must justify a delay.[3]

         We first consider delays due to court congestion and then address the remaining contested periods of delay in chronological order. "To a large extent, we are in as good a position as the judge below to decide whether the time limits imposed by the rule have run." Barry, 390 Mass. at 289. "This is so because '[w]hen a claim is raised under rule 36, the docket and minutes of the clerk are prima facie evidence of the facts recorded therein.' The other portions of the record are also documents which we can evaluate as well as the judge below. 'In these circumstances, while we will give deference to the determination made by the judge below, we may reach our own conclusions.'"[4] Commonwealth v. Farris, 390 Mass. 300, 303-304 (1983), quoting from Barry, supra at 289-290.

         1. Court congestion-related delays.

         Four of the continuances contributing to the delay of the defendant's trial, accounting for 268 days, are attributable to what the parties agree was court congestion. The occasion of each of these four delays was a lack of any or a sufficient number of jurors, but the length of the delays was also due at least in part to the court's calendar constraints. These delays include the periods from June 19 to September 17, 2013;[5] October 2 to October 29, 2013;[6] November 2, 2013, to January 21, 2014;[7] and January 2 3 to March 30, 2014.[8] The defendant objected to each of these delays and the motion judge found that these 268 days are attributable to the Commonwealth. See Commonwealth v. Denehy, 466 Mass. 723, 731-732 (2014) (in order to include delay in rule 36 calculation, defendant must object, even where objection is futile because delay is due to court congestion). Indeed, the Supreme Judicial Court has repeatedly stated that "normally court congestion is not a sufficient justification for the denial of the right to a speedy trial." Spaulding, 411 Mass. at 507. See Commonwealth v. Beckett, 373 Mass. 329, 332 (1977) ("[C]ourt congestion is not the responsibility of the defendant and must be weighed against the Commonwealth in assessing the reasons for the delay. But the weight to be given to such a cause for delay is not so heavy as a deliberate prosecutorial attempt to delay a trial"); Commonwealth v. Conefrey, 410 Mass. 1, 4-5 (1991) ("As a general proposition, court congestion by itself will not constitute an adequate justification for the denial of the right to a speedy trial. . . . However, reasons of court congestion may be adequate to excuse delay when ... a defendant has agreed to a continuance based on congestion, rendering him at least partially responsible for the delay") .[9]

         Nonetheless, the Commonwealth argues that it should not be penalized for the delays because the Commonwealth was ready for trial on the dates in question and was not at fault for the delays. See Commonwealth v. Lauria, 411 Mass. 63, 69-70 (1991); Reporter's Notes to Rule 36, Massachusetts Rules of Court, Rules of Criminal Procedure, at 210 (Thomson Reuters 2017) ("[T]he Commonwealth should not be penalized . . . when the cause[s] for delay are beyond its control"). In fact, the defendant forthrightly concedes that the prosecution did all it could to press the case forward.[10]

         The Commonwealth relies primarily on three cases in arguing that the congestion delays should not be included in the rule 36 calculation. However, these cases are factually distinguishable, as they involve defendants who acquiesced to continuances.

         In Lauria, the defendants' cases were delayed for a significant period of time due to a misplaced case file. Lauria, 411 Mass. at 65. During this delay, only the prosecutor attempted to advance the case by submitting letters notifying the judge and the parties that motions were still pending before the court. Id. at 65-67. The Supreme Judicial Court declined to adopt a per se rule that delay caused by misplaced court papers always counts against the Commonwealth. Id. at 70. Rather, the court held that the defendants' rule 36 motions were properly denied because "a disinterested attitude by a defendant in the progress of his case can permit a finding of acquiescence." Id. at 68. Here, the Commonwealth does not argue, nor is there evidence to suggest, that this defendant demonstrated disinterest in the progress of his case. The defendant repeatedly objected to delays attributable to court congestion, and persisted in attempting to advance his case.

         The second case on which the Commonwealth relies, Spaulding, essentially held that the Commonwealth may justify a delay because of court congestion if the defendant has agreed to the continuance. Spaulding, 411 Mass. at 507. Significantly, the court noted in Spaulding that "normally court congestion is not a sufficient justification for the denial of the right to a speedy trial." Ibid. The court made an exception "when ... a defendant has agreed to a continuance based on congestion, rendering him at least partially responsible for the delay." Ibid., quoting from Conefrey, 410 Mass. at 5. Here, the defendant noted his objection at each delay occasioned by court congestion and cannot be said to have agreed to the continuances.

         Finally, in Denehy, the Supreme Judicial Court determined that because there was no evidence that the defendant had raised an objection to the court-imposed continuances, including continuances caused by court congestion, he should be deemed to have acquiesced to them, as the court did not "wish to penalize unnecessarily the Commonwealth for delays to which it may object as well." Denehy, 466 Mass. at 732. The Commonwealth argues that the motion judge misread Denehy to hold that because the defendant objected to the court congestion delays, the time must be attributed to the Commonwealth. While we agree with the principle that the Commonwealth should not be unfairly penalized for delay when it also was ready for trial, this does not end the inquiry where, as here, the defendant zealously guarded his right to a speedy trial. We do not hold that all congestion- related delays to which a defendant objects will necessarily be counted against the Commonwealth in all circumstances; rather, where the defendant objects to the delay and did not cause, acquiesce to, or benefit from the delay, rule 36 constrains the Commonwealth to justify the delay under an exception to rule 36 in order for the time to be excluded from the rule 36 calculation.

         Rule 36, titled "Case Management, " is "designed to assist the trial courts in administering their dockets." Reporter's Notes to Rule 36, supra at 209. The rule provides a means for defendants and the public to secure speedy trials and promotes "the public interest in the efficient operation of the criminal justice system." Barry, 390 Mass. at 296. "The goal of providing defendants with speedy trials can be obtained only if the rule is interpreted to place certain obligations on all parties, including prosecutors, the trial courts, and defendants." Ibid. "[W]e are mindful that the courts must also control their own dockets so that criminal cases are brought to trial within the time periods specified by rule 36." Lauria, 411 Mass. at 70. And we understand that our trial courts sometimes "deal with overwhelming caseloads without adequate staff or resources." Ibid.

         The eight enumerated exceptions in rule 36(b)(2) are meant to ensure that the Commonwealth is not unfairly charged with delays that, if included, "would upset the balance of obligations envisioned by the rule." Spaulding, 411 Mass. at 506. Rule 36(b)(2) provides that the following periods of time "shall be excluded" in computing the running of the rule 36 clock:

"(F) Any period of delay resulting from a continuance granted by a judge on his own motion or at the request of the defendant or his counsel or at the request of the prosecutor, if the judge granted the continuance on the basis of his findings that the ends of justice served by taking such action outweighed the best interests of the public and the defendant in a speedy trial. No period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this subdivision unless the judge sets forth in the record of the case, either orally or in writing, his reasons for finding ...

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