Opinion
No. 00-11074
May 30, 2003
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION TO DISMISS
This matter is before the court on the defendant's, Milton Rogers, motion to dismiss the three indictments against him for the Commonwealth's failure to bring the case to trial within twelve months pursuant to Mass.R.Crim.P. 36(b), 378 Mass. 909. Following an evidentiary hearing on Thursday, May 8, 2003 and final arguments on Monday, May 12, 2003, the defendant's motion to dismiss is DENIED .
BACKGROUND
On October 31, 2000, the Suffolk County Grand Jury returned three indictments against the defendant charging him with rape, violation of a 209A restraining order, and indecent assault and battery on a person fourteen and over. The defendant was arraigned on November 1, 2000. On his arraignment date, the court appointed Attorney Charles Jordan ("Attorney Jordan") to represent the defendant. The case has been continued on several occasions, primarily because of, first the Commonwealth's, and then the defendant's pursuit of DNA testing. After the long delays occasioned by these pursuits, the DNA specialists determined it to be too difficult to separate the alleged victim's DNA from that of the unborn fetus' DNA for testing purposes. Thus, the testing was inconclusive. Additionally, six days before the first scheduled trial date, the defendant filed two motions that caused the postponement of the original trial date.
As of the date of this decision, the defendant had not yet been brought to trial on the indictments. As a result, the defendant claims that he has not been afforded his right to a speedy trial pursuant to Mass.R.Crim.P. 36.
DISCUSSION
The primary purpose of Mass.R.Crim.P. 36 ("Rule 36") is "to assist in the administration of trial court dockets." Commonwealth v. Lauria, 411 Mass. 63, 68 (1991). Rule 36(b)(1)(C) provides in pertinent part that "a defendant shall be tried within twelve months after the return day in the court in which the case is awaiting trial." "The `return date' is `the day upon which a defendant is ordered by summons to first appear or, if under arrest, does first appear before a court to answer to the charges against him, whichever is earlier.'" Barry v. Commonwealth, 390 Mass. 285, 291 (1983), quoting Mass.R.Crim.P. 2(b)(15), 378 Mass. 844 (1979). "If a defendant is not brought to trial within the time limits . . . he shall be entitled upon motion to a dismissal of the charges." Mass.R.Crim.P. 36(b)(1)(D). However, Rule 36(b)(2) provides a number of excludable periods "in computing the time within which the trial of any offense must commence." In addition to the listed excluded periods found in Rule 36, the Supreme Judicial Court has outlined additional exclusion periods in case law. A delay may be excused by showing that the defendant acquiesced in, was responsible for, or benefited from the delay. SeeCommonwealth v. Lauria, 411 Mass. at 68. Failing to object to continuances granted by the court is also considered acquiescence and is excludable for Rule 36 purposes. See Commonwealth v. Dias, 405 Mass. 131, 139 (1989); Commonwealth v. Farris, 390 Mass. 300, 305 (1983).
Here, the defendant was arraigned on November 1, 2000. The defendant failed to make bail and has been held awaiting trial to this date. The return date is November 1, 2000. Mass.R.Crim.P. 36(b)(3). Thus, "because the [defendant was] not brought to trial within one year of the date of [his] arraignment, [he is] presumptively entitled to have the charges against [him] dismissed under rule 36 unless it is shown that the delay is justified by time periods specifically excludable under rule 36 or by other sufficient reason." Commonwealth v. Lauria, 411 Mass. at 66;Barry v. Commonwealth, 390 Mass. at 291 (burden rests on Commonwealth to offer justification for delay beyond one year).
Calculation of Time
At the evidentiary hearing, the court received in evidence oral testimony from Attorney Jordan and Attorney Chrystal Murray ("Attorney Murray"), and written documents. The written documents considered by the court include the clerk's handwritten notes, the docket entries, the events entries, and the defendant's pro se filings. Based on the credible evidence, the court makes the following findings of fact and conclusions of law.
The court incorporates the attached appendix to this decision to assist in explaining the includable and excludable time periods for Rule 36 purposes. The documents show that 928 days have lapsed between the defendant's arraignment on 11/1/00 and 5/12/03, the date the court took the defendant's Rule 36 motion under advisement. Since Rule 36 requires that the case be brought to trial within one year of the defendant's return date, the Commonwealth has the burden of justifying 568 days of delay. Id.
The record shows that on 11/1/00, the defendant's arraignment date, the case was scheduled for a pre trial conference on 12/4/00 and that the parties agreed to file their non-evidentiary motions by 12/29/00. These 58 days are included in the Rule 36 calculations. See Barry v.Commonwealth, 390 Mass. at 296, n. 13 (noting that "the period between the return date and the date set for the filing of pretrial motions will be included in the computation of the time limits under the rule");Commonwealth v. Amidon, 44 Mass. App. Ct. 338, 340 (1998); see also Mass.R.Crim.P. 11(a)(2)(A), 378 Mass. 863 (1979); Commonwealth v.Spaulding, 411 Mass. 503, 506-507 (1992); Commonwealth v. Sigman, 41 Mass. App. Ct. 574, 575 (1996). Both parties agreed to continue the case until 1/8/01. Since the parties agreed to this 1/8/01 court date, this period is not included in the Rule 36 calculations. SeeCommonwealth v. Lauria, 411 Mass. at 71 (delay in which defendant acquiesces or from which he benefits should be excluded in measuring length of any delay).
The clerk's notes reflect a number of continuances between 1/8/01 and 4/5/01. Each docket entry during this period reflects that the case was continued for a hearing regarding the non-evidentiary motions, presumably the Commonwealth's motion for an order requiring the defendant to give blood samples for testing. The minutes are unclear, but it appears that the non-evidentiary hearing was held on 3/26/01, which carried over to 3/27/01. On 4/5/01, the court allowed the Commonwealth's motion ordering the defendant to submit blood samples for testing. The court thereafter called the case approximately once a month between 4/5/01 and 9/5/01. Each entry indicates the next court date was a status date on the testing of the defendant's blood. Attorney Jordan testified that he learned from the Assistant District Attorney in the beginning of August or September of 2001 that the Commonwealth had not tested the defendant's blood, despite the court order. The Assistant District Attorney also told Attorney Jordan that Cellmark, a DNA testing company, said that there would be about a six month turnaround in performing the DNA testing. At this point, the defendant opposed testing, and moved for a trial date in December with the agreement of the Commonwealth. Based on Attorney Jordan's credible testimony, the court uses the 9/5/01 court date as the end date for calculating the includable time for Rule 36 purposes. A total of 246 days lapsed between 1/8/01 and 9/5/01, which is chargeable to the Commonwealth.
On 9/5/01, the parties mutually agreed to continue the case until 9/25/01. Similarly on 9/25/01, the parties agreed to continue the case again until 10/17/01 for the scheduling of a trial date. These periods are not included in the Rule 36 calculations as they were agreed to. SeeCommonwealth v. Lauria, 411 Mass. at 71.
Attorney Jordan testified that in 10/01 or 11/01, he had a discussion with the defendant about DNA testing, specifically that Attorney Jordan wanted to change their trial strategy and pursue DNA testing by the defense. Attorney Jordan explained to the defendant that the DNA testing was a critical issue that could not be ignored. Attorney Jordan believed the DNA testing was essential because the Assistant District Attorney said that if the testing was negative, that would end the case against the defendant. After their discussion, the defendant agreed to allow Attorney Jordan to pursue the DNA testing on his behalf, despite his desire for an immediate trial. The defendant also understood that the DNA testing would take time.
On 10/2/01, the defendant filed a pro se motion to dismiss pursuant to Rule 36. On 10/17/01, both parties agreed to continue the case until the scheduled 12/10/01 trial date. As the defendant consented to each of these continuances, or at least did not object, and in fact benefited from these continuances by being able to pursue the DNA testing on his own, these time periods are not included in the Rule 36 calculations.Id.
On 12/4/01, six days before the scheduled 12/10/01 trial date, the defendant filed two motions. The filing of these motions tolled the computation of time for Rule 36 purposes. See Barry v. Commonwealth, 390 Mass. at 294 (holding that "[t]he filing of the motion, at least where a hearing promptly follows, tolls the running of the time in which a defendant must be tried").
The defendant filed a motion for the production of psychological records of the victim (Document #15) and a motion to compel the Boston Crime Laboratory to produce certain physical evidence (Document # 16). On the same day of its filing, the court (Lauriat, J.) allowed the motion to compel as to the Boston Crime Laboratory (Document # 16). After taking the motion for production of psychological records under advisement (Document # 15), on 1/10/02, the court (Lauriat, J.) denied the motion without prejudice after considering it as a Stage 1 Bishop request.
After the filing of the two motions, between 12/4/01 and 4/29/02, there were a number of continuances by agreement. The clerk's notes indicate that each continuance was marked as a status update on the DNA lab results being pursued by the defendant. During this period, Attorney Jordan sought to have different testing companies, including Cellmark and DNA Diagnostic, test and compare the DNA samples. On 4/29/02, the court allowed defendant's motion to amend an order to facilitate his DNA testing. Therefore, because the defendant benefited from these continuances by pursuing the DNA testing, these periods are not included in the Rule 36 calculations. Commonwealth v. Lauria, 411 Mass. at 71.
The parties mutually agreed again to continue the case on several occasions between 4/29/02 and 7/9/02. Attorney Jordan testified that the defendant made it very clear to him at the end of April of 2002 or May of 2002, that the defendant did not want any more continuances on the case. The defendant wanted a trial date regardless of the availability of the DNA testing. On June 18, 2002, Cellmark told Attorney Jordan that the sample it had received needed to be separated by a pathologist, specifically the maternal tissue needed to be separated from the fetal tissue, the latter being about two (2) months old. After the Cellmark testing turned out to be inconclusive, Attorney Jordan pursued the recommendation of Cellmark to further test. Attorney Jordan also took the position that there would be no further delay of the trial. At this time, Attorney Jordan was pursuing, with the acquiescence of the defendant, a two part strategy: first to get the DNA testing accomplished, and second not to delay the trial. Pursuant to this strategy, Attorney Jordan contacted Dr. Bieber of Brigham and Women's Hospital who had contacts with Cellmark. Also during this period in which the Commonwealth and Attorney Jordan, on behalf of the defendant, agreed to several continuances, the defendant filed pro se motions on 4/30/02, 5/21/02, and 6/21/02. In the end of June of 2002, Attorney Jordan became aware of several pro se filings of the defendant. On 7/9/02, the case was continued by agreement to 7/17/02. On that date, although the defendant was not present, the court (Walker, J.) ordered that all further pro se motions filed by the defendant be filed separately and not docketed by the clerk. The parties then agreed to continue the case until 8/28/02 for the scheduling of a trial date. Attorney Jordan testified that on 8/28/02 he specifically remembered objecting to the continuance of the case until 9/9/02. Attorney Jordan recalled that the defendant refused to agree to any more continuances and demanded a trial date. Therefore, because Attorney Jordan objected to the continuance on 8/28/02, the 12 days between 8/28/02 and 9/9/02 are included in the Rule 36 calculations.
Prior to the next court date, on 7/12/02, per order of the court, Attorney Jordan saw the defendant to discuss his pro se filings and the recent court order. After his discussion with the defendant, Attorney Jordan prepared an "omnibus discovery motion." The omnibus discovery motion encompassed and/or addressed most of the defendant's previously filed pro se motions. At that time, the defendant himself thought the DNA issue should be left to appeal. However, Attorney Jordan prevailed upon the defendant to pursue both the DNA and a trial date. The defendant agreed to this approach, but made it clear that he wanted a trial date.
On 9/9/02, Attorney Jordan filed the defendant's omnibus discovery motion. The court concludes that based on the defendant's conversation with Attorney Jordan and the filed motion, the defendant allowed Attorney Jordan to continue to pursue the DNA testing, without compromising a trial date. As it was the defendant who filed the omnibus motion, this time period is not included in the Rule 36 calculations. See Barry v.Commonwealth, 390 Mass. at 294. The court allowed the omnibus motion. On the same day, Attorney Jordan requested a trial date. However, the court and/or the assistant clerk told Attorney Jordan that he could not get a trial date because he had to go from a "status" hearing to a "trial assignment" hearing before he could get a "trial date."
The court called the case again on 10/9/02. On that date, the parties agreed to and scheduled a 12/4/02 status date and a trial date beginning the week of 1/6/03. The parties agreed to this continuance, and therefore this period is not included in the Rule 36 calculations.
Paradoxically, just at about the time Attorney Jordan was successful in securing a trial date for the defendant, a break down in their relationship occurred. On 10/21/02, after the defendant filed a Board of Bar Overseers complaint against Attorney Jordan, Attorney Jordan sought permission from the court to withdraw as the defendant's counsel. Four days later, the court appointed Attorney Murray to represent the defendant. On the same date, the case was continued until 10/28/02. This period is not included in the Rule 36 calculations because the defendant benefited from having new counsel appointed. See Commonwealth v. Judd, 25 Mass. App. Ct. 921, 923 (1987) (holding that time during which defendant's attorney representation was in a state of flux benefited defendant). On 10/28/02, the parties mutually agreed to continue the case until 11/12/02 for a bail hearing and a Rule 36 hearing. On 11/12/02, the parties agreed to continue the case until 11/19/02 for the defendant's video bail review. As these continuances benefited the defendant by allowing his new counsel to familiarize herself with the defendant's case and because the defendant filed a motion for bail review, this time period is not included in the Rule 36 calculations. SeeCommonwealth v. Lauria, 411 Mass. at 71; Commonwealth v. Barry, 390 Mass. at 294.
On 12/2/02 the defendant filed a motion to have Attorney Murray withdraw. The case was continued to 12/4/02, at which time the court denied the defendant's request for new counsel. As this was the defendant's motion, this period of delay is not included in the Rule 36 calculations. See Barry v. Commonwealth, 390 Mass. at 294.
On 1/6/03, Attorney Murray, on behalf of the defendant, filed a motion for an order authorizing an examination and isolation of fetal tissue for further DNA testing. Attorney Murray testified that she filed the motion because of the requirement of zealous advocacy. She indicated that the defendant "one-half" agreed to the filing and that the defendant did not order her not to file the motion. Shortly thereafter, Attorney Murray met with a fetal geneticist at Brigham and Women's Hospital, Dr. Bieber. Dr. Bieber agreed to perform the testing while he was in the Washington D.C. area on other business. Attorney Murray met with Dr. Bieber on two or three occasions. Attorney Murray was able to get the DNA material to the Cellmark laboratory. Attorney Murray expected movement on the testing by mid January. Attorney Murray explained all of this to the defendant, including the time table for the testing. Attorney Murray told the defendant that the matter would not be ready for trial until mid-January at the earliest. The defendant did make it clear to Attorney Murray that he wanted a trial date, but had no conversation with her to the effect that he would not agree to any continuances. As the defendant filed this motion, the period from 1/6/03 to 1/13/03 is not included in the Rule 36 calculations. Id.
The case was heard again on 1/13/03. On that date, the court permitted Attorney Murray to withdraw from the case. The withdrawals of Attorney Jordan and then Attorney Murray caused the postponement of the second trial date. By agreement the court continued the case until 1/17/03. This period is not included in the Rule 36 calculations because the defendant requested a change of attorney and benefited from that change. See Commonwealth v. Judd, 25 Mass. App. Ct. at 923.
On 1/17/03, the court appointed Attorney John Courtney ("Attorney Courtney") to represent the defendant. By agreement the case was continued until 2/18/03. The case was called again on 2/19/03. On 2/19/03, the parties agreed to continue the case until 3/5/03. On 3/5/03, the court continued the case until 3/25/03 for a video bail review. As the defendant filed this motion, this time period is not included in the Rule 36 calculations. Barry v. Commonwealth, 390 Mass. at 294. On 3/25/03, the defendant withdrew his video bail motion, and after a lobby conference, filed a Rule 36 motion to dismiss. The parties agreed to continue the case until 4/1/03. As the parties agreed to this continuance, this time period is not included in the Rule 36 calculations. Commonwealth v. Lauria, 411 Mass. at 71.
On 4/1/03, the case was continued until 4/23/03. By order of the court, this time period was excluded from Rule 36 calculations. On 4/23/03, after a hearing, with the defendant present, the court (Quinlan, J.) ordered that an evidentiary hearing be held on the defendant's Rule 36 motion. On the same day, the parties agreed to a status hearing on 4/29/03. As the parties agreed to this continuance and because the hearing is based on the defendant's motion, this time period is not included in the Rule 36 calculations. Id.; Barry v. Commonwealth, 390 Mass. at 294.
On 4/29/03, the defendant was present in court. The parties agreed to continue the case until 5/8/03 for an evidentiary hearing on the defendant's Rule 36 motion to dismiss. As the parties agreed to this continuance and the hearing is on the defendant's motion, this time period is not included in the Rule 36 calculations. Id.
On 5/8/03, this court held an evidentiary hearing on the defendant's Rule 36 motion. Final arguments were heard four days later on 5/12/03. As this time period is attributable to the defendant's motion, it is not included in the Rule 36 calculations. Barry v. Commonwealth, 390 Mass. at 294.
In conclusion, after excluding from the computation all the time that Rule 36 and the case law contemplate should be the responsibility of the defendant, the Commonwealth has justified 612 days. Thus, the Commonwealth has met its burden. Accordingly, the Commonwealth may still bring the case to trial in compliance with Rule 36.
The court recognizes that the defendant was not present in court during the period in which he filed several pro se motions. However, the Commonwealth and the court are entitled to rely on defense attorney's representations on the defendant's behalf. The court also recognizes that the defendant filed several pro se motions, beginning as early as 10/00 and then consecutively in 4/02, 5/02 and 6/02. These motions do not, however, alter this court's decision as to this motion. The Supreme Judicial Court has stated that a defendant cannot enjoy both the right to counsel and the right to proceed pro se in a criminal matter.Commonwealth v. Tuitt, 393 Mass. 801, 807 (1985). "Instead, the right to represent oneself and the right to counsel are available in the `disjunctive.'" Id., United States v. Halbert, 640 F.2d 1000, 1009 (9th Cir. 1981). Thus, because the defendant agreed to Attorney Jordan's representation and to the tactical two track strategy pursued by Attorney Jordan and Attorney Murray, he was not entitled to exercise his right to proceed pro se during the case. Commonwealth v. Tuitt, 393 Mass. at 808.
The defendant unequivocally told Attorney Jordan not to agree to any more continuances of the case in or about 4/02 — 5/02. Attorney Jordan sought a trial date at the earliest time while pursuing the DNA testing. While waiting for a trial date, Attorney Jordan continued to pursue the DNA testing in the hopes of a successful outcome which would dispose of the entire case. Attorney Jordan's two track approach was approved of by the defendant and did not interfere with the defendant's desire for a prompt trial. The Commonwealth and the court were entitled to rely on Attorney Jordan's representations, notwithstanding the defendant's pro se motions.
Most troublesome to the court is the defendant's undocketed motion to dismiss Attorney Jordan dated June 12, 2002. Although the clerk never date stamped the motion, the court presumes that the clerk's office received the motion because it is in the case file. This motion came after the defendant ordered Attorney Jordan, in 4/02, not to agree to any more continuances and during the time that the defendant filed his series of Rule 36 pro se motions. While acknowledging the defendant's frustration with the pace of the proceedings and his concerns regarding the continuances which prompted this motion to dismiss counsel, the court finds telling the fact that the defendant never pursued this motion. Instead, based on the record and Attorney Jordan's testimony, the court concludes that the defendant permitted his counsel to continue to pursue both the DNA testing and a trial date, while the defendant himself demanded a trial date through his pro se motions. The court concludes that if the defendant truly believed in June of 2002 that Attorney Jordan was not properly representing his interests and wishes, then the defendant should have pursued his motion to dismiss Attorney Jordan, as he in fact later did with Attorney Jordan and Attorney Murray. In the absence of such action by the defendant, the court and the Commonwealth could not reconcile defense attorney's representations and the defendant's pro se motions. Although it is regrettable that the defendant has been in custody awaiting trial for such a long period of time, the Commonwealth has satisfied its burden of justifying the delays.
In this motion, the defendant cites as reasons for the dismissal a disagreement in strategy, failure to obtain a bail appeal, lack of understanding between defendant and attorney, failure to represent defendant's best interests, complete breakdown in communication, and that the defendant has no trust in Attorney Jordan.
ORDER
For all the foregoing reasons, the defendant's motion to dismiss pursuant to Mass.R.Crim.P. 36, is DENIED .
___________________________ Raymond J. Brassard Justice of the Superior Court
May, 2003
APPENDIX
Time period excluded includeddays days
1. 10/31/00 indicted
2. 11/1/00 — 12/29/00 arraigned, scheduled pre trial
58
conference date and motions — included
Barry v. Commonwealth, 390 Mass. at 296, n. 13
12/29/00 — 1/8/01 continued by agreement regarding non- 10 evidentiary motions
1/8/00 — 1/30/01 continued by agreement regarding non- 28
evidentiary motions
5. 1/30/01 — 2/7/01 continued by agreement regarding non- 8
evidentiary motions
6. 2/7/01 — 3/14/01 continued by agreement regarding non- 35
evidentiary motions
7. 3/14/01 — 3/26/01 continued by agreement regarding non- 12
evidentiary motions
3/26/01 — 3/27/01 continued by agreement regarding
1
Commonwealth's motion for blood
samples
3/27/01 — 4/2/01 continued by agreement regarding blood 6
samples
10. 4/2/01 — 4/5/01 continued by agreement until the court 3
issued order on the allowance of blood
sample
11. 4/5/01 — 9/5/01 period between when court ordered blood 153
sample until Attorney Jordan learned the
Commonwealth had not tested blood
9/5/01 — 9/25/01 continued by agreement 20
9/25/01 — 10/17/01 continued by agreement regarding hearing
for a trial date 22
10/2/01 defendant files first pro se Rule 36 Motion to Dismiss
—
14. 10/17/01 — 12/4/01 continued by agreement for trial
on 12/10/01 48
15. 12/4/01 — 1/15/02 defendant files two motions six (6) days
before the scheduled trial date — motion
for production of psychological records
of victim and for the production of physical
evidence from the Boston Crime Lab-
oratory-continued by agreement 42
16. 1/15/02 — 4/29/02 a number of court appearance dates that
are continued by agreement
104
4/30/02 defendant files pro se motion to dismiss with affidavit
4/29/02 — 5/20/02 continued by agreement 22
5/21/02 defendant files pro se motion to dismiss for prejudicial delay with affidavit
5/20/02 — 5/29/02 continued by agreement 9
5/29/02 — 6/12/02 continued by agreement for status
re: DNA results 14
6/12/02 — 7/9/02 continued by agreement 27
6/21/02 defendant files pro se motion to dismiss on a number of grounds
21. 7/9/02 — 7/17/02 continued by agreement 8
7/17/02 — 8/28/02 continued by agreement re: trial date
(Walker, J.) orders clerk to keep further
pro se motions separate 42
8/28/02 — 9/9/02 continued, but Attorney Jordan objected
to the further continuance
12
9/9/02 — 10/9/02 defendant files omnibus motions for
discovery 30
10/9/02 — 10/21/02 status date set for 12/4/02
trial set for week of 1/6/03
continued by agreement 12
10/21/02 — 10/25/02 Attorney Jordan withdraws from case
4
10/25/02 — 10/28/02 state of flux re: defense attorney
3
10/28/02 — 11/12/02 continued by order of court re: bail
hearing and Rule 36 motion 15
29. 11/12/02 — 11/19/02 video bail hearing on 11/10/02 —
continued by agreement 7
11/19/02 — 12/2/02 continued to 12/4/02 re: counsel
14
12/4/02 defendant makes motion for new court
appointed attorney — denied
12/4/02 — 1/13/03 continued by agreement 40
1/6/03 Attorney Murray on behalf of defendant
files a motion for an order authorizing
an examination of fetal tissue for further
DNA testing (defendant did not prohibit
Attorney Murray from filing motion)
1/13/03 — 1/17/03 Attorney Murray withdraws
4
1/17/03 — 2/19/03 Attorney Courtney appointed, case
continued by agreement 33
2/19/03 — 3/5/03 continued by agreement 14
3/5/03 — 3/25/03 continued by agreement re: video bail 20
on 3/25/03
3/25/03 — 4/1/03 Attorney Courtney filed rule 36 motion
to dismiss after lobby conference — case
continued until 4/23/03 — by agreement 7
4/1/03 — 4/23/03 rule 36 motion continued until
4/23/03 — by order of court this time is
excluded from rule 36 calculations 22
40. 4/23/03 — 4/29/03 hearing held re: rule 36 motion — court
(Quinlan, J.) held evidentiary hearing on
rule 36 motion required — by agreement
case continued to 4/29/03 6
41. 4/29/03 — 5/8/03 defendant in court — continued by
agreement to 5/8/03 for an evidentiary
hearing on rule 36 motion 9
42. 5/8/03 — 5/12/03 defendant in court — evidentiary hearing
held on rule 36 motion — continued by
agreement to 5/12/03 for final arguments
4
43. 5/12/03 final arguments — court took matter
under advisement —
TOTALS 612 316