Commonwealth v. Douglas

Commonwealth v. Jason Douglas et al

No. 135618

No. 1184CR10964

Superior Court of Massachusetts, Suffolk

December 27, 2016

Filed December 28, 2016

MEMORANDUM AND ORDER ALLOWING DEFENDANTS' MOTIONS TO DISMISS PURSUANT TO RULE 36

Kenneth W. Salinger, Justice

Jason Douglas and Wayne Steed are accused of constructively possessing a loaded firearm. The police searched a vehicle and found a loaded handgun under the front passenger seat where Douglas had been sitting and immediately in front of the right rear seat where Steed had been sitting. Both men were indicted for unlawfully possessing a firearm, a loaded firearm, and the ammunition in the gun.^[1]

Several years passed while the legality of the vehicle search was litigated. Judge Sanders suppressed the firearm and ammunition. The Appeals Court affirmed, but the Supreme Judicial Court granted further appellate review and reversed.^[2] The Superior Court magistrate held a status conference in July 2016 and scheduled trial for October 12, 2016. Twelve days before trial the Commonwealth moved for a continuance so that its ballistician witness could attend a training program. Defendants objected, but the trial was continued to January 13, 2017.

Defendants now move to dismiss all indictments against them on the ground that the twelve-month speedy trial time limit imposed by Mass.R.Crim.P. 36 has been exceeded. The Court concludes that it must ALLOW these motions because the Commonwealth has not met its burden of showing that continuing the trial from October 2016 to January 2017 was justified or required by the unavailability of an essential witness, and as a result the Rule 36 speedy trial clock has run out. The Commonwealth has not proved that the ballistician whose schedule it was seeking to accommodate was essential (because the Commonwealth could have proved its case with a substitute expert witness or with no ballistician at all) or that this witness was unavailable within the meaning of Rule 36 (because a police department employee is not unavailable merely because she or he would prefer to go to an out-of-state training program).

1. Legal Background

" Rule 36 ensures that defendants are brought to trial within a reasonable time, requiring that a defendant 'shall be tried within twelve months after the return day in the court in which the case is awaiting trial.'" Commonwealth v. Taylor, 469 Mass. 516, 520, 14 N.E.3d 955 (2014), quoting Mass.R.Crim.P. 36(b)(1)(C). " If the defendant is not brought to trial within one year 'he shall be entitled upon motion to a dismissal of the charges.'" Id., quoting Mass.R.Crim.P. 36(b)(1). " The twelve-month period may be tolled, however, during those periods enumerated by Mass.R.Crim.P. 36(b)(2), or where the defendant acquiesced in the delay, . . . was responsible for the delay, . . . or benefited from the delay." Id. at 520-21 (citations omitted). " The Commonwealth bears the burden of demonstrating that any period of time should be excluded from the calculation." Id. at 521.

By law, any dismissal of charges " on speedy trial grounds" under Rule 36 operates as a dismissal with prejudice, so that " a subsequent prosecution for the same and any related offense is barred." Commonwealth v. Balliro, 385 Mass. 618, 624, 433 N.E.2d 434 (1982) (applying Rule 36; accord Commonwealth v. Fields, 371 Mass. 274, 282, 356 N.E.2d 1211 (1976) (applying former G.L.c. 277, § 72A, which was superseded by Rule 36).

2. Analysis

The speedy trial clock counting down the twelve-month limit imposed by Rule 36 began to run anew for each defendant on October 4, 2011, when they were arraigned in the Superior Court. See, Commonwealth v. Farris, 390 Mass. 300, 304 n.4, 455 N.E.2d 433 (1983); Mass.R.Crim.P. 36(b)(1)(C).

The parties agree that the Rule 36 clock was tolled while Defendants pressed their motion to suppress evidence and the Commonwealth sought interlocutory review of the suppression order. See Rule 36(b)(2)(A)(iv) & (v).

The parties also agree that the clock ran during three periods, totaling 328 days, that are attributable to and count against the Commonwealth. Specifically, they agree that the Rule 36 clock was ticking away: (i) for the 34 days from the arraignment in Superior Court on October 4, 2011, to November 7, 2011, which was seven days after the pre-trial conference; ^[3] and (ii) for the additional 294 days covering two periods from the allowance of the motion to suppress on March 28, 2012, to the Commonwealth's filing of its notice of interlocutory appeal on April 4, 2012, and from the SJC's issuance of its rescript on October 8, 2015, to the status conference on July 27, 2016, when a new trial date was established.

The parties disagree as to whether the Rule 36 clock was tolled during three additional periods. The Court concludes that two of the periods do not count against the Commonwealth because Defendants acquiesced in those delays. But Defendants objected to the Commonwealth's motion to further continue the trial date and the Commonwealth has not shown that the resulting 75-day delay may be excluded for purposes of applying Rule 36.

2.1. March 8 to March 19, 2012--Continuance of Motion to Suppress Hearing

Defendants argue that ten additional days should count against the Commonwealth because the motion to suppress hearing originally scheduled for March 8, 2012, was continued to March 19, 2012, to give the Commonwealth time to complete its mandatory discovery.^[4] The Court disagrees.

This period does not count against the Commonwealth because neither defendant did anything to challenge this short delay in the obtaining the mandatory discovery owed by the Commonwealth. " [A] defendant seeking both to preserve his speedy trial rights and to obtain items of missing mandatory discovery must file a motion for sanctions or to compel pursuant to rule 14(a)(1)(C). In order that a defendant freely may pursue the discovery he is due without thereby sacrificing his rule 36 rights, the time it takes to resolve the rule 14(a)(1)(C) motion shall not be excluded automatically from the ultimate speedy trial calculation. This framework ensures both that a defendant will not sit on his hands and then later attempt to invoke rule 36, and also that he need not choose between two procedural rights to which he is equally entitled." Taylor, 469 Mass. at 527-28. Where, as here, the Commonwealth requests and obtains a continuance because it needs more time to provide mandatory discovery, and the defendant acquiesces in that request without seeking sanctions or to compel disclosure, the speedy trial clock under Rule 36 stops running. Id. at 526 & 528 n.17.

2.2. Period After July 27, 2016--Scheduling Trial Date

Defendants also argue that there was no good reason for the magistrate to delay the original trial date until October 12, 2016, and that as a result the 130 days between the July 12, 2016, status conference and the December 5, 2016, filing of Mr. Douglas's Rule 36 motion to dismiss should count against the Commonwealth. The Court once again disagrees.

Neither defendant lodged any objection at the July status conference to having the trial scheduled for October 12. Counsel for Mr. Douglas said he was ready to try the case and asked for an August trial date. Counsel for Mr. Steed apparently agreed. But when the magistrate said he was concerned that witnesses may not be available in August, that the trial calendar looked rather full in September, and that he therefore preferred to set a trial date in October, neither defense lawyer lodged any objection.

Under these circumstances, Defendants acquiesced in and waived any objection to the setting of an October 12 trial date, which means that this period cannot be counted against the Commonwealth. " When a defendant has agreed to a continuance, or has not entered an objection to delay, he will be held to have acquiesced in the delay." Commonwealth v. Williams, 475 Mass. 705, 714-15, 60 N.E.3d 335 (2016), quoting Barry v. Commonwealth, 390 Mass. 285, 298, 455 N.E.2d 437 (1983). Rule 36 " is intended to encompass 'existing case law under former G.L.c. 277, § 72A, to the extent that a defendant is not automatically entitled to dismissal if he acquiesces'" in a continuance or other delay. Barry, supra at 295, quoting Commonwealth v. Look, 379 Mass. 893, 898-99 n.2, 402 N.E.2d 470 (1980). " [B]ecause the opportunity conferred by the rule is not a fundamental constitutional right, or even a right created by statute, the application of 'traditional indicia of waiver of rights' is appropriate." Id. at 296, quoting Commonwealth v. Carr, 3 Mass.App.Ct. 654, 656, 338 N.E.2d 844 (1975).

2.3. Continuance of Trial Date to January 13, 2017

The final period at issue is the time after the October 12, 2016, trial date. On September 30, 2016, less than two weeks before the scheduled trial, the Commonwealth moved to continue the trial on the ground that its ballistics expert was " unavailable for trial due to out of state training." The motions to continue (one was filed in each case) state that Defendants both objected and did not waive their rights under Rule 36. Since Defendants did not acquiesce in or benefit from the delay, the Commonwealth has the burden proving that this " delay falls within one of the excluded periods provided by rule 36(b)(2)." Commonwealth v. Roman, 470 Mass. 85, 92-93, 18 N.E.3d 1069 (2014). The Court concludes that the Commonwealth has not met this burden and therefore the time elapsed since the original trial date counts against the Commonwealth.

The Commonwealth failed to demonstrate that the trial had to be continued to January 2017 because an essential witness was not available to testify. Rule 36 provides that " [a]ny period of delay resulting from the absence or...