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Commonwealth v. Dirico

Supreme Judicial Court of Massachusetts, Middlesex

September 13, 2018

COMMONWEALTH
v.
JOSEPH DIRICO. Events No. days excluded Explanation

          Heard: April 2, 2018.

         Indictments found and returned in the Superior Court Department on September 15, 2005. A motion to dismiss was heard by John T. Lu, J.; the cases were tried before Elizabeth M. Fahey, J.; a motion for reconsideration of the motion to dismiss was heard by Fahey, J.; and a supplemental motion to reconsider the motion to dismiss, filed on October 28, 2015, was considered by Lu, J.

         After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

          Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          Rebecca Rose for the defendant.

          Jamie M. Charles, Assistant District Attorney, for the Commonwealth.

          GANTS, C.J.

         The defendant, Joseph Dirico, claims a violation of his rights to a speedy trial under Mass. R. Crim. 36 (b), as amended, 422 Mass. 1503 (1996) (rule 36 [b]); the Sixth Amendment to the United States Constitution, as incorporated through the Fourteenth Amendment; and art. 11 of the Massachusetts Declaration of Rights. The defendant contends that the Commonwealth was responsible for the delay in providing him with the results of deoxyribonucleic acid (DNA) evidence testing, and that none of the time after he filed a motion for mandatory discovery should be considered excludable delay. We hold that the defendant's right to a speedy trial under rule 36 (b) was not violated.

         We conclude that the discovery the defendant characterized as "mandatory" was not mandatory discovery that the Commonwealth must automatically provide to a defendant under Mass. R. Crim. P. 14 (a) (1), as amended, 444 Mass. 1501 (2005) (rule 14 [a] [1]). We also conclude that, even if it did constitute mandatory discovery, a defendant who does not want the speedy trial clock to be tolled where a scheduled event is continued because of the Commonwealth's delay in providing mandatory discovery must, under rule 14 (a) (1) (C), move to compel the production of that discovery or move for sanctions, which the defendant failed to do here. Here, the defendant acquiesced in, benefited from, and was partially responsible for the vast majority of the delay between the filing of his motion for mandatory discovery and the filing of his motion to dismiss for lack of a speedy trial: the defendant retained an expert to evaluate the results of the Commonwealth's DNA testing, the defendant did not object to the Commonwealth's delay in providing the additional information regarding that testing ordered by the judge to be produced, and a trial date could not reasonably be assigned until the expert had obtained and evaluated that additional information.

         Finally, we conclude that a criminal defendant who moves for dismissal for lack of a speedy trial, claiming violation of his or her rights to a speedy trial under rule 36 and the United States and Massachusetts Constitutions, is entitled to review of such constitutional claims even where his or her rule 36 claim is denied. A constitutional analysis of a speedy trial claim is separate and distinct from a rule 36 analysis, and is triggered when a defendant alleges "that the interval between accusation and trial has crossed the threshold dividing ordinary from 'presumptively prejudicial' delay." Commonwealth v. Butler, 464 Mass. 706, 709-710 (2013), citing Doggett v. United States, 505 U.S. 647, 651-652 (1992). Having conducted that constitutional analysis, we hold that the defendant's constitutional rights to a speedy trial were not violated.

         Background.

         On September 15, 2005, a Middlesex County grand jury returned indictments charging the defendant with three counts of statutory rape of his fifteen year old daughter (victim), in violation of G. L. c. 265, § 23. The defendant was arraigned on October 20, 2005, in the Superior Court, and pleaded not guilty to all three counts.

         During the course of its investigation, the police learned from the defendant's wife that the victim disclosed to her that the defendant had had sexual intercourse with the victim on the couch in the basement of the family home. A police officer accompanied the defendant's wife into the home and seized the cushion cover of the couch as evidence. Later, using a fluorescent light, the police located approximately seven spots on the cushion cover and observed signs of semen. On May 16, 2005, the cushion cover was brought to the State police crime laboratory (crime lab) for examination of possible DNA evidence.

         On July 11, 2006, the defendant's wife notified the police that the victim had found a framed photograph of the victim on which, according to the victim, the defendant had ejaculated numerous times during masturbation and then handed to the victim. A police inspector examined the framed photograph with a fluorescent light and an orange filter, and observed signs of bodily fluids on the frame. This item was submitted to the crime lab on July 21, 2006, for DNA testing.

         On September 7, 2006, a judge ordered the defendant to provide his saliva on a buccal swab. On December 13, 2006, the record indicates that the prosecutor provided the defendant with a "DNA Affidavit" from a crime lab case manager of forensic biology, which was dated January 9, 2006. The record does not reflect the content of this affidavit, but one can infer that it did not include a DNA examination of the framed photograph and that it did not compare the defendant's DNA to any DNA that might have been located on the cushion cover.

         On May 23, 2007, the Commonwealth provided additional DNA discovery to the defendant, [1] and defense counsel informed the prosecutor that the defendant would be retaining an expert to review the DNA findings. On June 22, 2007, the defendant filed a motion for funds for a DNA expert and a motion for "mandatory discovery." The latter motion sought an order that the Commonwealth provide copies of "all [electronic data] regarding the DNA testing," "all electronic files related to the case, reported or not," and the "Standard Operating Manual" used by the laboratory analysts who conducted the DNA testing. The judge allowed both motions on that same day. But he did not issue an order to Orchid Cellmark, the private laboratory that the Commonwealth had used to conduct the DNA testing, directing the production of the records, until September 4, 2007.[2] On September 10, 2007, the Commonwealth provided the defendant with the supplemental discovery that the defendant had requested.

         On August 6, 2007, a status review was held, and the case was continued until September 4, 2007, to give defense counsel more time to provide the Commonwealth with the name and curriculum vitae of its defense expert. A status review was held on September 4, 2007, but the case was continued at the suggestion of the court (without any objection by the defendant) until October 11, 2007. At that October 11 status conference, the defendant had yet to provide the Commonwealth with the required reciprocal discovery regarding his defense expert; this was provided to the Commonwealth on October 23, 2007.

         Late in December, 2007, the defendant sent a report to the Commonwealth that "included a notation about missing discovery material." The Commonwealth represents that it promptly telephoned defense counsel and initiated written communications in an effort to clarify what discovery was missing. Nevertheless, it took until January 30, 2008, for the Commonwealth to receive clarification that the defendant did not have the results of the Y-chromosome short tandem repeat method (Y-STR) testing, which is male-specific DNA testing. On March 6, 2008, shortly after receiving the Y-STR results from Orchid Cellmark, the Commonwealth provided the defendant with them. With this production, the defendant had the results of all of the DNA testing in the case.

         The DNA analysis of the couch cushion and framed photograph found DNA only in epithelial cells commonly found on the surface of human skin. The results of the Y-STR testing demonstrated that the defendant "could not be excluded as the donor of any of the DNA profiles obtained from any of the epithelial [cell] fractions of the cushion cuttings." The results of the Y-STR testing demonstrated that the defendant's DNA "matched" the DNA profile from an epithelial fraction of the framed photograph. One of the cushion cover samples yielded "a possible [DNA] mixture, indicating the possible presence of an unidentified individual." No DNA from semen was reported to be found on either item that was tested.

         On May 20, 2008, the defendant filed a motion to dismiss for lack of a speedy trial, claiming that the delay in bringing his case to trial violated rule 36 (b), the Sixth Amendment, and art. 11. The judge calculated what he found to be the excludable delay, reached a "preliminary" finding of fact that no more than 258 days attributable to the Commonwealth had elapsed between the date of arraignment and the date of the filing of the motion to dismiss, and accordingly denied the defendant's motion without prejudice.

         The defendant's first trial began on September 30, 2008, and, as a result of a hung jury, ended in a mistrial on October 8, 2008. On February 17, 2009, the defendant's second trial commenced before a different judge, and the jury found the defendant guilty on all three counts of statutory rape. The Appeals Court affirmed his convictions in an unpublished memorandum and order pursuant to its rule 1:28. See Commonwealth v. Dirico, 7 9 Mass.App.Ct. 1130 (2011).

         On November 26, 2012, the defendant, representing himself, moved for reconsideration of the denial of his motion to dismiss for lack of a speedy trial, and the judge who had presided over his second trial denied the motion, concluding that the defendant had waived this claim by not seeking reconsideration before appeal and by not raising it on appeal. The defendant appealed, and the appeal was stayed by the ...


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