Opinion
No. 12–P–302.
2013-04-3
COMMONWEALTH v. Angel NAZARIO.
By the Court (GREEN, HANLON & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from his conviction on a charge of indecent assault and battery on a child under the age of fourteen, the defendant claims error in the denial of his pretrial motion to dismiss the complaint, on the ground of violation of his constitutional right to a speedy trial. We agree with the defendant that his motion should have been allowed and reverse the judgment.
Our disposition of the case renders moot the defendant's claim that the sentencing judge erred in modifying the mittimus.
We evaluate the defendant's claim under the four-part test enunciated in Barker v. Wingo, 407 U.S. 514, 530 (1972):(1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4) prejudice to the defendant. In the present case, the length of the delay (more than twenty-six and one-half years) is extraordinary by any measure. See Commonwealth v. Gore, 79 Mass.App.Ct. 745, 748 (2011) (“beyond argument” that twelve and one-half year delay was extraordinary). The Commonwealth contends that it cannot be faulted for the delay, since the defendant lived in another State at the time of the charged offense, and (it asserts) for the period between the issuance of the complaint and his eventual trial in 2011. However, the record illustrates that the defendant was brought before the New Bedford District Court on at least one occasion in 1989. Moreover, though the defendant was a member of the victim's extended family, the Commonwealth appears to have made no effort to determine his whereabouts by soliciting information from the victim's mother or other family members. Indeed, the record is devoid of any indication of what, if any, efforts the Commonwealth made to locate the defendant and bring him before the court to face the instant charges. The defendant's delay in asserting his right to a speedy trial is fairly attributed to the fact that the defendant was unaware of the charge until April, 2011, when he learned of the outstanding warrant while in custody on unrelated charges in New Jersey and wrote to the district attorney and the Brockton District Court. See Doggett v. United States, 505 U.S. 647, 653 (1992). Finally, with a delay of such extraordinary length, prejudice is both inherent and presumed. See id. at 655–656;Commonwealth v. Malone, 65 Mass.App.Ct. 285, 288–289 (2005).
It is possible, or even likely, that the defendant was brought before the court on several other occasions for two matters in 1989 and 1990.
The judgment is reversed, and the verdict is set aside. The case is remanded to the District Court for entry of a judgment of dismissal.
So ordered.