Commonwealth v. Taylor

469 Mass. 516

14 N.E.3d 955

COMMONWEALTH

v.Rodrick James TAYLOR.

SJC–11398.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Dec. 5, 2013.

Decided Aug. 29, 2014.

Chauncey B. Wood (John Swomley with him), Boston, for the defendant.

Sarah H. Montgomery & Kathleen Celio, Assistant District Attorneys (Edmond J. Zabin, Assistant District Attorney, with them) for the Commonwealth.

Benjamin H. Keehn, Boston, Committee for Public Counsel Services, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

William M. Jay, of the District of Columbia, Paul F. Ware, Jr., Joshua M. Daniels, & Kevin P. Martin, Boston, for Boston Bar Association, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.¹

Opinion

LENK, J.

The defendant appeals from his conviction of murder in the second degree. He maintains both that a Superior Court judge erred in denying his motion to dismiss for lack of a speedy trial pursuant to Mass. R.Crim. P. 36(b), as amended, 422 Mass. 1503 (1996), and that errors in the prosecutor's closing argument require reversal.

As to the speedy trial claim, the judge did not abuse his discretion in denying the defendant's motion to dismiss under Mass. R.Crim. P. 36, 378 Mass. 909 (1979) (rule 36 ). A total of 614 calendar days had elapsed between the defendant's arraignment and the filing of his motion to dismiss, which tolled the running of time in which the defendant's trial must have commenced. See Barry v. Commonwealth, 390 Mass. 285, 294, 455 N.E.2d 437 (1983). However, the Commonwealth met its burden of showing that at least 249 days were excludable from the speedy trial calculation, and that the defendant accordingly had been brought to trial within the requisite one-year period under rule 36.² Because the defendant acquiesced in certain delays, failed to object

to every continuance sought by the Commonwealth, did not press a motion under Mass. R.Crim. P. 14(a)(1)(C), as appearing in 442 Mass. 1518 (2004), to compel production of mandatory discovery, and otherwise engaged in ordinary motion practice, we discern no error in the judge's decision to deny the defendant's motion to dismiss on speedy trial grounds.

That being said, we nonetheless take this occasion to examine the difficulties presented when, as here, the Commonwealth fails timely to comply with its obligations under Mass. R.Crim. P. 14, as appearing in 442 Mass. 1518 (2004) (rule 14 ), to produce mandatory discovery. A defendant must decide in those circumstances whether to press a motion to compel production of the requisite discovery, aware that, under extant case law, doing so automatically will stop the running of the speedy trial clock, notwithstanding the time it may take to resolve such a motion. Otherwise put, a defendant who has not timely received mandatory discovery must choose between preserving his or her speedy trial rights and receiving the mandatory discovery to which he or she is also entitled. We address this untenable situation by concluding that the time it takes to resolve a rule 14 motion brought to compel mandatory discovery should not, as at present, automatically be excluded from the speedy trial calculus. Instead, the judge who hears such a motion must determine on a case-by-case basis whether delays resulting from its resolution fairly should count towards the Commonwealth's twelve-month timeline.

Regarding the prosecutor's closing argument, we conclude, separately, that the defendant is not entitled to a new trial. Although certain of the prosecutor's remarks were improper, they did not, viewed in context, constitute reversible error.

1. Background. a. Overview. On July 28, 2006, a Suffolk County grand jury returned an indictment charging the defendant with murder in the first degree, G.L. c. 265, § 1 ; the defendant was arraigned on August 3, 2006. Six hundred and fourteen days later, on April 7, 2008, the defendant filed a “motion to dismiss for lack of speedy trial,” which the Commonwealth opposed. After a nonevidentiary hearing, the Superior Court judge who later presided at the defendant's trial denied the motion on May 12, 2008, and issued a written decision explaining the reasons for that denial on June 27. Trial began on May 14, 2008, and the case

went to the jury on June 26, 2008. After six days of deliberation, the jury found the defendant guilty of murder in the second degree; the defendant timely appealed.

Several years later, the defendant filed a motion for a new trial, alleging that the trial judge erred in failing to instruct the jury sua sponte on the relevance of the defendant's intoxication on the night of the crime and that counsel was ineffective for failing to request such an instruction.³ A different judge denied that motion, and the defendant timely appealed. After consolidating his direct appeal with the appeal from the denial of his new trial motion, a panel of the Appeals Court affirmed the defendant's conviction. See Commonwealth v. Taylor, 83 Mass.App.Ct. 1106, 2013 WL 158456 (2013). We granted the defendant's application for further appellate review, which asked that we consider only his direct appeal.

b. Facts. i. The Commonwealth's case. The Commonwealth argued at trial that the defendant strangled the victim, a young woman named Dominique Samuels, early on Friday, April 28, 2006, then burned her body in a nearby park early on Sunday, April 30, 2006.

The victim lived on Woodbine Street in the Roxbury section of Boston. Also residing there were brothers Martin and Brian McCray;⁴ Martin's cousin, Danielle Taylor;⁵ and a friend of Martin. The landlord and her family lived on the first floor. On the evening of Thursday, April 27, 2006, the defendant and Martin were drinking alcohol and playing video games in Martin's room. Just before 10 p.m., Martin left and spent the night at the home of his girl friend, while the defendant remained in Martin's room. Later that night, the daughter of the landlord, whose bedroom was directly beneath Martin's, heard screaming and loud noises from Martin's room, as did Danielle.

The following morning, the defendant told Martin that he had “killed her, the girl upstairs, Dominique” by strangling and choking her. The defendant showed Martin scratches on his arms and neck that he claimed Dominique had inflicted on him, and told Martin that the victim's body was in her room at the Woodbine Street apartment. Between that afternoon, Friday, April 28, 2006, and the early morning of Sunday, April 30, 2006, Martin and the

defendant had several telephone conversations. According to Martin, the defendant said that he needed a vehicle so he could dispose of the victim's body. The defendant told Martin that he was going to burn the victim's fingertips because her nails had his skin beneath them. At 5:30 a.m. on Sunday, April 30, the defendant telephoned Martin and told him, “It's done.”

The victim's body was discovered in Franklin Park at approximately 6 a.m. on the morning of April 30, her face and hands heavily burned. A search of Martin's bedroom produced two bloodstains, one consisting of the victim's blood and the other with a deoxyribonucleic acid (DNA) profile consistent with that of the defendant. Martin informed police investigators that the defendant had confessed to killing the victim, and after interviewing the defendant,⁶ who denied involvement in the victim's death, police arrested the defendant for murder.

ii. The defendant's theory of the case. The defendant's central argument was that Martin, not the defendant, had killed the victim and burned her body, and that Martin was lying about the defendant's confession. Defense counsel maintained that cellular telephone records provided an alibi for the defendant at the time the victim's body was burned.

2. Discussion. a. Speedy trial rights. The time between the defendant's arraignment and his motion to dismiss for lack of a speedy trial was 614 days, 249 days longer than rule 36 provides. Because the resolution of the defendant's speedy trial claim relies in substantial part on delays occasioned by the Commonwealth's failure to provide mandatory discovery pursuant to rule 14, we first examine the relationship between rule 36 and rule 14.

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 day⁷ in the court in which the case is awaiting trial.” 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.” 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, Commonwealth v. Jones, 6 Mass.App.Ct. 750, 752–753, 383 N.E.2d 527 (1978), was responsible for the delay, Commonwealth v. Loftis, 361 Mass. 545, 549–550, 281 N.E.2d 258 (1972), or benefited from the delay. Commonwealth v. Alexander, 371 Mass. 726, 728–729, 359 N.E.2d 306 (1977). See Commonwealth v. Look, 379 Mass. 893, 898 n. 2, 402 N.E.2d 470 (1980) ; Reporter's Notes to Rule 36(b)(2), Massachusetts Rules of Court, Rules of Criminal Procedure, at 236 (Thomson Reuters 2014). The Commonwealth bears the burden of demonstrating that any period of time should be excluded from the calculation. See Barry v. Commonwealth, 390 Mass. 285, 291, 455 N.E.2d 437 (1983) ; Commonwealth v. Look, supra.

Rule 14 (a)(1)(A) of the Massachusetts Rules of Criminal Procedure, as amended, 442 Mass. 1518 (2004), requires the Commonwealth to produce to the defense, at or before the pretrial conference, various relevant items in the Commonwealth's possession, custody, or control.⁸ See Commonwealth v. Frith, 458 Mass. 434, 439, 939 N.E.2d 709 (2010), quoting Commonwealth v. Green, 72 Mass.App.Ct. 903, 903 n. 1, 890 N.E.2d 171 (2008) (mandatory discovery “promote[s] judicial efficiency” ...