Opinion
No. 11–P–1730.
2013-10-21
COMMONWEALTH v. Jeffrey KING.
Commonwealth v. Carr, supra at 861 (internal citations omitted). The unavailability of ASL interpreters falls in this neutral category. To be sure, the lack of translators is attributable to the Commonwealth, though not to the prosecutor, since it is the responsibility of the Commonwealth to provide ASL interpreters. This lack weighs against the Commonwealth, but not with the strength of a deliberate attempt to delay the proceedings. See ibid. Although King repeatedly appeared ready for trial, he did not assert his speedy trial right until his motion to dismiss was filed. While an objection on speedy trial grounds to each delay is not a prerequisite to a constitutional speedy trial claim, the lack of an objection weakens the defendant's claim. See Beckett, supra at 333. Cf. Bishop v. Commonwealth, 352 Mass. 258, 260 (1967) (granting a motion to dismiss because of trial delays where the defendant “at all times ... made efforts to secure trial”). Finally, although the judge purported to find prejudice, his finding was unsupported by evidence.
By the Court (MEADE, RUBIN & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Jeffrey King, was charged with failure to register as a sex offender. King filed a motion to dismiss, claiming that trial delays caused by the unavailability of American Sign Language interpreters violated Mass.R.Crim.P. 36(b), 378 Mass. 909 (1979), and his constitutional right to a speedy trial. A judge dismissed King's case without prejudice. The Commonwealth appeals from the dismissal. We reverse.
Background. On April 28, 2009, King was charged with failure to register as a sex offender
in violation of G.L. c. 6, § 178H. King required three American Sign Language (ASL) interpreters for trial. His case was continued seven times. A chronology of the continuances, and the reasons for the continuances gives context to King's claim. On April 6, 2010, King's presence in court was waived. He was present on all future trial dates and did not object to any continuances until he filed a motion to dismiss. On April 16, 2010, an interpreter was “present and sworn,” but the record does not specify whether the requisite three ASL interpreters were available. On May 20, 2010, only one ASL interpreter was present. On July 7, 2010, no ASL interpreters were available. On September 1, 2010, the record does not specify whether an interpreter was available, but the case was continued. On December 10, 2010, ASL interpreters were unavailable until 2 P.M., and even then, only a single interpreter was supposed to be available, and King consequently requested a continuance. On February 4, 2011, no ASL interpreters were available. Finally, on April 8, 2011, no ASL interpreters were available. At the May 20, July 7, December 10, 2010, and February 4, 2011, trial dates, King selected the new trial dates. On April 8, 2011, King objected to further continuances and filed a motion to dismiss. At the hearing on King's motion, the judge stated that “while the objections to the continuances because of the lack of interpreter are not noted on the docket, I credit what [King's attorney] has said, that he made the objections, even though they didn't make it onto the docket.” He went on, “And that doesn't reach the question whether or not they're necessary. But if they are necessary, I credit [King's attorney's] statements that he made those objections when the case couldn't go forward.” He also said, “whether or not prejudice needs to be found in this case at this time, based on the evidence that is available, the information that is available it appears to the court that there is some prejudice against Mr. King, because a witness would have been in court, is now unavailable.” The judge then dismissed King's case without prejudice.
In 2007, King pleaded guilty to three counts of indecent assault and battery upon a child under age fourteen. He was placed on probation, conditioned on his registration as a sex offender.
On appeal, the Commonwealth argues that King cannot prevail on a Mass.R.Crim.P. 36(b) speedy trial violation because he never objected to the continuances, and the judge improperly credited him with having made such objections. The Commonwealth further argues that the continuances did not violate King's constitutional right to a speedy trial, guaranteed by the Sixth Amendment to the United States Constitution and art. 11 of the Massachusetts Declaration of Rights, because the delays were comparatively short, the Commonwealth was not culpable for the unavailability of ASL interpreters, King did not assert his speedy trial rights, and King was not prejudiced.
King asserts that rule 36 does not require that defendants object to continuances and that the judge properly found that he did not waive his right to a speedy trial. King further asserts that his constitutional right to a speedy trial was violated because the delay was sufficiently long, that the unavailability of ASL interpreters should be weighed against the Commonwealth, that King asserted his speedy trial rights even though this was unnecessary, and that he was prejudiced by the delays. Additionally, he argues that the unavailability of ASL interpreters constituted structural error and denied him access to the court, violating his rights under the Sixth Amendment's due process and confrontation clauses, and art. 12 of the Amendments to the Massachusetts Constitution.
Discussion. In reviewing the rule 36 issue, we give some deference to the judge, but reach our own conclusions, taking the docket as prima facie evidence of the facts. Barry v. Commonwealth, 390 Mass. 285, 289 (1983). Under rule 36, defendants are entitled to dismissal if they are not brought to trial within one year and the Commonwealth cannot justify the delay. Mass.R.Crim.P. 36. Commonwealth v. Spaulding, 411 Mass. 503, 503–504 (1992). We exclude from the speedy trial calculation periods during which “the defendant acquiesced in, was responsible for, or benefited from the delay.” Id. at 504. A defendant acquiesces when he “assents to post-indictment delay,” “agrees to continuances,” or “has not entered an objection to delay.” See Barry, 390 Mass. at 298;Spaulding, 411 Mass. at 507–508;Commonwealth v. Butler, 464 Mass. 706, 719 (2013). In the face of court congestion, rule 36 requires that defendants object. See Spaulding, supra at 507. In this case, we look to the docket and trial transcripts for the facts, which show that King first objected to delays when he filed his motion to dismiss, nearly two years after he was charged. He assented to the earlier continuances, often selecting new dates for trial two or three months in the future. Accordingly, King acquiesced in the delays and is not entitled to dismissal under rule 36.
Because the defendant raised the constitutional claim below, we review the speedy trial issue to determine whether the delays were harmless beyond a reasonable doubt. Commonwealth v. Carr, 464 Mass. 855, 860 (2013). The Sixth Amendment to the United States Constitution and art. 11 of the Massachusetts Declaration of Rights coextensively grant criminal defendants the right to a speedy trial. Ibid. To assert this right, King must preliminarily show that trial delays were “presumptively prejudicial.” Id. at 861. Such a showing triggers a four-part balancing test, under which we weigh “(1) the length of the delay; (2) the reasons for the delay; (3) the extent, if any, to which the defendant asserted his right to a speedy trial; and (4) the extent of any prejudice to the defendant resulting from the delay.” Commonwealth v. Beckett, 373 Mass. 329, 331–332 (1977), citing Barker v. Wingo, 407 U.S. 514, 530 (1972).
The nearly two-year period between King's criminal charge and motion to dismiss constitutes presumptive prejudice and triggers the four-factor analysis. See Commonwealth v. Underwood, 3 Mass.App.Ct. 522, 527 (1975). In assessing the reasons for delay,
“[t]he United States Supreme Court has observed that ‘different weights should be assigned to different reasons' for a delay in bringing a defendant to trial. Weighing most heavily against the government would be ‘[a] deliberate attempt to delay the trial in order to hamper the defense.’ At the other end of the spectrum are delays requested or otherwise orchestrated by the defendant, such as by evading capture by authorities. In between are more neutral reasons for delay attributable to the Commonwealth, ‘such as negligence or overcrowded courts [which] should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.’ “
Commonwealth v. Carr, supra at 861 (internal citations omitted). The unavailability of ASL interpreters falls in this neutral category. To be sure, the lack of translators is attributable to the Commonwealth, though not to the prosecutor, since it is the responsibility of the Commonwealth to provide ASL interpreters. This lack weighs against the Commonwealth, but not with the strength of a deliberate attempt to delay the proceedings. See ibid. Although King repeatedly appeared ready for trial, he did not assert his speedy trial right until his motion to dismiss was filed. While an objection on speedy trial grounds to each delay is not a prerequisite to a constitutional speedy trial claim, the lack of an objection weakens the defendant's claim. See Beckett, supra at 333. Cf. Bishop v. Commonwealth, 352 Mass. 258, 260 (1967) (granting a motion to dismiss because of trial delays where the defendant “at all times ... made efforts to secure trial”). Finally, although the judge purported to find prejudice, his finding was unsupported by evidence.
Viewing these factors in their totality, the delays did not violate King's constitutional right to a speedy trial. We recognize that in Bishop v. Commonwealth, supra, upon which King relies, the court found that a consistent failure by the trial court for over slightly less than two years to provide a jury trial for a defendant who was ready to go forward—occasioned there by the failure of the Legislature to fund the court—while not chargeable to the prosecutor, warranted dismissal under the speedy trial guarantee of art. 11 of the Declaration of Rights. Bishop, however, was decided in 1967, before the current four-part test was adopted in Barker v. Wingo, supra, and before the Supreme Judicial Court made clear that the speedy trial guarantee in art. 11 was to be read coterminously with the Federal constitutional speedy trial guarantee. In determining whether Bishop standing alone might support King's position, we conclude that under the Supreme Judicial Court's most recent speedy trial cases, King has not made out his claim of a violation. Of course, we do not condone the court's inability to procure three ASL interpreters for trial, and we do not mean to suggest that continued failure to provide such interpreters could never violate King's speedy trial rights. That question, however, is not before us.
Order allowing motion to dismiss reversed.