Opinion
18-P-1020
12-04-2019
COMMONWEALTH v. Andrew J. IPPOLITO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the District Court, the defendant, Andrew J. Ippolito, was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI) in violation of G. L. c. 90, § 24 (1) (a ) (1). On appeal, the defendant challenges the denial of his motion to dismiss on speedy trial grounds. See Mass. R. Crim. P. 36 (b) (1) (D), as amended, 422 Mass. 1503 (1996). We affirm.
Background. The defendant was arrested and arraigned on June 10, 2016. During the booking process, which was video recorded, the defendant was administered a breathalyzer test. On his first pretrial compliance date, September 9, 2016, the defendant sought and obtained an evidentiary hearing date for a motion to suppress the breathalyzer test pursuant to Commonwealth v. Pierre, 72 Mass. App. Ct. 230 (2008), but did not file his motion at that time.
On October 12, 2016, the Commonwealth brought the case forward and moved to continue the motion hearing date because an "[o]fficer [was] unavailable due to medical leave." The defendant objected "for purposes of Rule 36," but the case was continued for hearing until November 28, 2016. On the date of the evidentiary hearing, November 28, 2016, the defendant filed his motion to suppress the breathalyzer test and test result, raising not only the Pierre challenge that he had flagged when he requested the motion hearing date, but also a new argument based on the validity of his consent to the breathalyzer test. On that date, the Commonwealth conceded the validity of the motion to suppress, and it was allowed.
Trial was set for March 9, 2017, but was ultimately continued three times, each time over the defendant's objection. When the case was reached for trial on August 1, 2017, the defendant moved to dismiss the OUI charge pursuant to rule 36, asserting his right to a speedy trial. The motion was denied the same day, the trial went forward, and, as we note above, the defendant was convicted of OUI. This appeal followed.
Discussion. Rule 36, which is both a "[case] management tool, designed to assist the trial courts in administering their dockets," Commonwealth v. Dirico, 480 Mass. 491, 497 (2018), quoting Barry v. Commonwealth, 390 Mass. 285, 295-296 (1983), and a means of "quantify[ing] the time limits beyond which a defendant's speedy trial rights shall be deemed to have been denied" (citation omitted), Commonwealth v. Taylor, 469 Mass. 516, 517 n.2 (2014), provides that a defendant must be tried "within twelve months after the return day in the court in which the case is awaiting trial," Mass. R. Crim. P. 36 (b) (1) (C), 378 Mass. 909 (1979). The burden is on the Commonwealth to justify any delay beyond the twelve-month window. See Dirico, supra at 497. Where, as here, the judge's ruling on the defendant's motion to dismiss is based on the docket and papers in the case file, and does not rely on an evidentiary hearing, we review the ruling de novo. See id. at 496 ; Commonwealth v. Denehy, 466 Mass. 723, 730 (2014).
In this case, the defendant established a prima facie violation of rule 36 based on his showing that 418 days had elapsed between his arraignment on June 10, 2016, and the trial on August 1, 2017, fifty-three days more than the twelve months permitted under the rule. See Dirico, 480 Mass. at 497 ; Mass. R. Crim. P. 36 (b) (1) (C). Of that time, the defendant concedes that the period from September 9, 2016, when he requested a hearing on the motion to suppress, until October 12, 2016, when the Commonwealth moved to continue the original motion hearing date, is excludable under rule 36. See Commonwealth v. Murphy, 55 Mass. App. Ct. 332, 333 (2002) ; Mass. R. Crim. P. 36 (b) (2) (A) (v), 378 Mass. 909 (1979). Calculating that the Commonwealth must justify an additional nineteen days of excludable time to remain within the time permitted under rule 36, we conclude that the Commonwealth has met its burden. See Dirico, supra at 497.
a. Continuance based on unavailable witness. The Commonwealth obtained a continuance from October 12, 2016, until November 28, 2016, based on the unavailability of a police officer witness who was on medical leave. "Any period of delay resulting from the absence or unavailability of the defendant or an essential witness" is excludable under rule 36. See Mass. R. Crim. P. 36 (b) (2) (B). "[A]n essential witness shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence." Commonwealth v. Graham, 480 Mass. 516, 526 (2018), quoting rule 36 (b) (2) (B). The defendant argues alternatively that (1) the Commonwealth's request lacked sufficient specificity under rule 36, and (2) in any event, no witness was necessary, since the Commonwealth should have conceded the validity of the motion to suppress before the hearing date. We are not persuaded.
First, relying on the Reporters' Notes to rule 36, which provide that the moving party "should set forth with particularity the reasons why a continuance will enable him to obtain the witness and should state the facts as to which the witness is expected to testify" (emphasis added), Reporters' Notes to Rule 36, Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 395 (LexisNexis 2019), the defendant argues for the first time on appeal that the Commonwealth's continuance request was insufficiently detailed to meet the requirements of the rule. While recognizing the recommendation set forth in the Reporters' Notes, we observe that neither rule 36 nor the Reporters' Notes mandates this level of particularity. Compare Commonwealth v. Cook, 426 Mass. 174, 180-181 (1997) (interpreting "shall" as mandatory). We conclude that in this case, where the defendant raised no objection to the particularity of the Commonwealth's motion, the Commonwealth was not required to provide more explicit detail than it did about the nature or duration of the witness's medical condition, and that the Commonwealth's continuance request satisfied the requirements of the rule. See Commonwealth v. Alves, 6 Mass. App. Ct. 572, 576 n.3 (1978) (illness of key Commonwealth witness did not count against Commonwealth in speedy trial analysis).
In a letter submitted after oral argument pursuant to Mass. R. A. P. 16 (l), as appearing in 481 Mass. 1628 (2019), the defendant directs this panel to Commonwealth v. Housewright, 470 Mass. 665, 671 (2015). Housewright, which considers the standard for the admission of prerecorded testimony under the confrontation clause of the Sixth Amendment to the United States Constitution where there is a suggestion that the testifying witness is too ill to attend the trial, see id. at 670-671 & n.8, is inapplicable in the context of a rule 36 motion.
Second, the defendant contends that the Commonwealth, having seen the video recording of the defendant's booking, should have recognized immediately that it would concede the motion to suppress, making it impossible that any witness would be essential to the scheduled hearing. We disagree. The defendant did not file his motion until the hearing date, November 28, 2016. We do not require the Commonwealth to preemptively concede a motion that it has not seen, particularly where, as here, it does not know the full scope of the arguments on which the motion is based. See Graham, 480 Mass. at 524, quoting Reporters' Notes to Mass. R. Crim. P. 36 (b) (2) ("Commonwealth should not be penalized when the defendant elects to avail himself of those procedures" that are "certain to result in delay," or when the causes for delay "are beyond [its] control"). See also Mass. R. Crim. P. 13 (a), as appearing in 442 Mass. 1516 (2004). Understanding that the motion would be filed, and that the hearing would go forward as a Pierre challenge, the police officers present for the defendant's booking and breathalyzer test would have been essential witnesses at the motion hearing. See Graham, supra. See also Pierre, 72 Mass. App. Ct. at 233 (motion to suppress granted where officer did not testify to observations during fifteen-minute period preceding breathalyzer test). Concluding that the continuance from October 12 to November 28, a total of thirty-four days, was based on the unavailability of a witness necessary to the motion to suppress, we also conclude that that time is excludable from the speedy trial calculation, bringing the case within the twelve-month period permitted under rule 36.
In setting the motion hearing date, the defendant indicated that his motion to suppress would be based on a Pierre argument. As filed, however, the motion included not only that argument, but also a new argument focused on the validity of the defendant's consent to the breathalyzer test. The fact that the Commonwealth conceded the validity of the motion shortly after it was filed on November 28 does not change our view; the basis for the Commonwealth's concession does not appear in the record.
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b. Trial date continuances. Given our disposition of the appeal, we need not reach the question whether the ninety-six-day period resulting from judicial continuances of the first three scheduled trial dates is excludable time under rule 36. See Mass. R. Crim. P. 36 (b) (2) (F) (continuances granted by judge excludable where judge makes explicit on record reason for finding "that the ends of justice served by taking such action outweighed the best interests of the public and the defendant in a speedy trial").
Conclusion. Having the burden to justify fifty-three days as excludable, the Commonwealth has, in fact, justified eighty excludable days. The trial judge did not err in denying the defendant's motion to dismiss pursuant to rule 36.
Judgment affirmed.