Opinion
13-P-1210
04-12-2017
COMMONWEALTH v. Joseph DIRICO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This collateral appeal follows our rule 1:28 decision affirming the convictions of the defendant, Joseph Dirico. See Commonwealth v. Dirico, 79 Mass. App. Ct. 1130 (2011). Here, the sole issue is whether the defendant received a speedy trial. In total, the defendant filed three motions to dismiss his charges for lack of speedy trial pursuant to the Sixth Amendment to the United States Constitution, art. 11 of the Massachusetts Declaration of Rights, and Mass.R.Crim.P. 36(b), as amended, 422 Mass. 1503 (1996). The trial court denied all three motions. We affirm.
Background. On October 20, 2005, the defendant was arraigned on three indictments for statutory rape of a child in violation of G. L. c. 265, § 23, and released on personal recognizance. Trial on those charges commenced on September 30, 2008. Prior to trial, on June 22, 2007, the defendant filed a "Motion for Mandatory Discovery" requesting an order that the Commonwealth provide deoxyribonucleic acid (DNA) evidence in electronic form, as well as the standard operating manual used by the DNA laboratory analysts. That order issued on September 4, 2007. During the period from June 22, 2007, to May 20, 2008 (the DNA delay), the record indicates numerous continuances. On May 20, 2008, some 333 days after the defendant's discovery motion, defense counsel filed the first motion to dismiss for lack of speedy trial, which was denied by a motion judge.
This first trial resulted in a mistrial. A second trial commenced on February 17, 2009, after which a jury found the defendant guilty on all three counts.
Both parties calculate the DNA delay as 333 days.
Subsequent to our resolution of his direct appeal, the defendant filed a pro se motion for reconsideration of his motion to dismiss, which was denied by the trial judge. Later, the defendant's present appellate counsel filed a supplemental motion for reconsideration, which was denied by a second motion judge. The latter judge found in his findings of fact that, of the nonexcludable delays, only ninety-seven days were attributable to the Commonwealth, well short of the one-year period under rule 36. Specifically, the judge found that the DNA delay was not attributable to the Commonwealth, because the defendant failed to procedurally preserve his claim as provided in Commonwealth v. Taylor, 469 Mass. 516 (2014). Now before us is the defendant's consolidated appeal from the denials of the original and supplemental motions to reconsider.
The trial judge ruled, "Reconsideration is basically waived where it was not sought before appeal and was not a basis of the appellate case." We decline to reach the issue of waiver.
At oral argument, defense counsel agreed that our resolution of the DNA delay is outcome-determinative. The defendant's rule 36 speedy trial claim rises or falls on the attribution of the DNA delay to the Commonwealth. Because we conclude that the DNA delay was not attributable to the Commonwealth and was thus excludable from the rule 36 calculation, we need not address the other delays briefed by the parties.
Discussion. To review the denial of a motion to dismiss for lack of speedy trial, we apply the abuse of discretion standard. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) ; Commonwealth v. Fling, 67 Mass. App. Ct. 232, 236 n.9 (2006). The Sixth Amendment to the United States Constitution and art. 11 of the Massachusetts Declaration of Rights provide a criminal defendant with the right to a speedy trial. In addition, rule 36 affords a defendant an even greater right to a speedy trial. See Commonwealth v. Levin, 390 Mass. 857, 858 n.2 (1984). See also Commonwealth v. Stokes, 18 Mass. App. Ct. 637, 640 (1984).
Rule 36 provides that if a defendant is not "tried within twelve months after the return day," the defendant shall be entitled to dismissal of the charges. Mass.R.Crim.P. 36(b)(1)(C). However, time can be excluded from the speedy trial calculus "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." Commonwealth v. Marable, 427 Mass. 504, 505 (1998), quoting from Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992) (quotations omitted). "A failure to object to a continuance or other delay constitutes acquiescence." Commonwealth v. Tanner, 417 Mass. 1, 3 (1994).
In Commonwealth v. Taylor, 469 Mass. 516, 527 (2014), the Supreme Judicial Court addressed the procedure for a defendant "seeking both to preserve his speedy trial rights and to obtain items of missing mandatory discovery" under Mass.R.Crim.P. 14, as appearing in 442 Mass. 1518 (2004). The speedy trial clock stops when a defendant either "moves to compel the missing discovery or agrees to a continuance requested by the Commonwealth." Taylor, supra at 526. Though the court acknowledged a perceived "tension" between preserving "the right to mandatory discovery and the right to a speedy trial," id. at 527, a defendant must nevertheless "explicitly and formally object, on the record, to each and every proposed continuance or delay." Id. at 524. It follows that "[a] defendant may not simultaneously agree to a continuance and assert his rule 36 rights." Id. at 525. Thus, where a defendant seeks to preserve the speedy trial right and assert a right to mandatory discovery, the defendant must file a motion pursuant to rule 14(a)(1)(C) for sanctions or to compel production, in order to "take proactive steps to alert the court and the prosecution" that the Commonwealth has violated its mandatory discovery obligations. Id. at 527.
Mandatory discovery includes, inter alia, "[a]ny facts of an exculpatory nature." Mass.R.Crim.P. 14(a)(1)(A)(iii).
Relying on Taylor, the defendant argues that the "Motion for Mandatory Discovery" filed on June 22, 2007, which was not followed by any rule 14 motion, is sufficient to constitute objection to the periods of continuance during the DNA delay. The Commonwealth in turn argues that simply asking for discovery is not notice as contemplated by Taylor. We agree with the Commonwealth. No evidence in the record indicates that the defendant objected to the continuances. Instead, the record shows that the defendant acquiesced to numerous continuances and sought funds for an expert to analyze the DNA. Finally, according to the docket, the defendant never filed a rule 14 motion for sanctions or to compel discovery. Therefore, we agree with the second motion judge's reading of Taylor in his written decision of April 25, 2016, that the defendant was "require [d to file] a motion for sanctions or to compel discovery in order to charge the Commonwealth" with the DNA delay. We conclude that there was no abuse of discretion in the orders denying the motions for reconsideration.
During the DNA delay, the defendant was released on bail. When the proof of a charge depends on the testimony of a witness and the defendant is not in custody, there is often a lack of incentive by the defendant to press for trial. Delay in such circumstances generally benefits the defendant because the memories of the witnesses against him fade, and witnesses sometimes lose interest in the case. Cf. Commonwealth v. Canon, 373 Mass. 494, 498-499 (1977) (among concerns behind speedy trial calculus are "loss of witnesses or failure of memory during the period of delay"). See generally Edmaiston v. Neil, 452 F.2d 494, 501-502 (6th Cir. 1971) (defendants could reap benefits of delay such as "additional time free on bail before trial; the disappearance of prosecution witnesses; a change in the prosecutor's decision to go ahead with the matter"); Washington v. Striker, 87 Wash. 2d 870, 876 (1976) (en banc), quoting from Note, Speedy Trials: Recent Developments Concerning a Vital Right, 4 Fordham Urb. L.J. 351, 353 (1976) (delay advantages defendants because witnesses in "stale cases are more easily challenged by defense attorneys on cross examination"); Harvey v. Wyoming, 774 P.2d 87, 101-102 (Wyo. 1989) (Urbigkit, J., specially concurring) (same).
Since we conclude that the defendant received a speedy trial under rule 36, we need not address the constitutional requirements under Barker v. Wingo, 407 U.S. 514, 530-531 (1972), or under art. 11 as explained in Commonwealth v. Butler, 464 Mass. 706, 709 n.5 (2013). See Levin, 390 Mass. at 858 n.2.
--------
Orders denying motion and supplemental motion for reconsideration of motion to dismiss affirmed.