Opinion
10-P-618
11-29-2011
COMMONWEALTH v. DAVID THOMPSON.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from convictions of armed robbery and malicious destruction of property, the defendant's sole appellate contention is that the motion judge erred in denying his motion to dismiss the indictments for violation of the requirements of Article III of the Interstate Agreement on Detainers, St. 1965, c. 892, § 1 (IAD). We affirm.
The first 'includable' day for purposes of the IAD's 180-day time provision is June 23, 2008, the date by which the defendant's paperwork invoking the IAD was received by both the Essex County district attorney (the prosecuting officer) and the Haverhill District Court (the court then having jurisdiction over the pending complaints). See Commonwealth v. Copson, 444 Mass. 609, 617 (2005); Commonwealth v. Malone, 65 Mass. App. Ct. 285, 287 (2005). From that starting point, the IAD required that the defendant be brought to trial by December 22, 2008, 'provided, that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.' Art. III (a). See Fex v. Michigan, 507 U.S. 43, 51 (1993); Commonwealth v. Copson, supra at 612- 613. The defendant's trial did not commence until March 17, 2009. Nevertheless, the motion judge did not err in concluding that good cause was shown that various continuances were reasonable or necessary and that sufficient excludable periods existed to bring the defendant's case into compliance with the IAD.
We need not decide whether the motion judge erred in determining that the first 'includable' day for IAD purposes was September 26, 2008, because the defendant wished to delay his arrival in Massachusetts until he completed his Maine sentence. Accepting June 23, 2008, as the first includable day, the defendant's case was tried within the 180-day deadline when days excludable for good cause are taken into account.
We also need not address whether the 180day time limitation of the IAD remains operative when the defendant has completed his sentence in the sending State before returning to the receiving State.
At the defendant's arraignment on October 9, 2008, in open court and in the presence of the defendant and his counsel, the Superior Court judge granted the Commonwealth a continuance until October 20 to file a motion to obtain the defendant's DNA by taking a buccal swab. The period from October 9 to October 20, 2008, is properly excludable notwithstanding that the defendant's attorney moved for immediate trial. In a case that turned on identification, the Commonwealth's request was reasonably likely to lead to the discovery of admissible DNA evidence relevant to the defendant's guilt. See Commonwealth v. Trigones, 397 Mass. 633, 640 (1986). The judge's grant of a continuance is an implicit finding that good cause existed and that such a continuance was reasonable or necessary in a major felony case where identity was of singular importance.
In the course of the robbery, the perpetrator commanded the store employee, 'Don't you dare look at me. I don't want you to identify me.' He also hit a monitoring camera with a crowbar.
We discern no basis for requiring a more express or particularized finding by the judge as to soundness of the cause or the necessity or reasonableness of the continuance, especially given defense counsel's utter failure to alert the judge to the relevance of the IAD. In response to the judge's indication that he was measuring the defendant's expressed desire for immediate trial against rule 36 concerns, defense counsel gave the judge no reason to measure the Commonwealth's request differently. Defense counsel did not alert the judge to concerns regarding the defendant's rights under the IAD or argue that the Commonwealth's motion was unnecessary or unwarranted, nor did he complain that the continuance requested was unreasonable. Indeed, in response to the judge's inquiry whether the defendant would accede to a buccal swab, after conferring with the defendant, defense counsel replied that he would not. For substantially the same reasons, we likewise exclude from the 180-day calculation the periods (a) from October 20 to November 5, 2008, when the prosecutor requested additional time to prepare the buccal swab motion, and (b) from November 5 (when the motion for a buccal swab was allowed) until December 11, 2008, (when the DNA tests results were completed).
We do not absolve the Commonwealth from all responsibility for alerting the judge to the stricter time constraints of the IAD over those imposed under Mass.R.Crim.P 36(b), 378 Mass. 910 (1979). Nevertheless, it is clear from the record that defense counsel not only was acutely aware of IAD constraints but deliberately 'hid the ball' and actively misled the judge into considering only the time limitations of Rule 36 and not those of the IAD when determining what continuances were reasonable or necessary. See Commonwealth v. Copson, supra at 622-623 ('Article III creates a . . . balance that is dependent on all parties fulfilling their respective obligations').
Not until the filing of a motion to dismiss alleging violation of the IAD on February 4, 2009, did defense counsel disclose to the judge that the IAD was at the heart of his repeated requests for 'immediate trial.'
Indeed, on November 5, 2008, when a different judge allowed the Commonwealth's buccal swab motion and scheduled the case for a December 11, 2008, pretrial conference, the judge specifically asked defense counsel whether his objection to a continuance and his request for immediate trial was grounded in rule 36 concerns. Defense counsel responded, 'Correct.'
Likewise excludable for IAD purposes is the period from December 11, 2008, when the case was called for pretrial conference (and setting of a trial date), until commencement of the defendant's trial on March 17, 2009. The judge alerted both defense counsel and the Commonwealth to the difficulty of scheduling trials quickly because of session limitations and the scheduling of other significant cases. Rather than accepting the judge's invitation to proffer reasons for setting a trial date earlier than March and candidly advising the judge that IAD requirements were of concern to the defendant, defense counsel again misled the judge into believing that the more expansive time limitation of rule 36, and not the IAD, was the focus of concern. Had defense counsel disclosed to the judge that the IAD was of concern, we might well take a different view as to excludability of this entire period.
. Because we have concluded that the period from December 11, 2008, to March 17, 2009, is excludable, we need not count the overlapping period of excludability from the filing of the defendant's motion to dismiss on February 4, 2009, to its denial on March 14, 2009. See Commonwealth v. Copson, supra at 625 (defendant's filing motion to dismiss suspends running of 180-day period).
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Judgments affirmed.
By the Court (Grasso, Smith & Meade, JJ.),