Opinion
13-P-1743
05-16-2017
COMMONWEALTH v. Gary BLACK.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Superior Court the defendant, Gary Black, was found guilty of armed assault with intent to murder and assault and battery by means of a dangerous weapon causing serious bodily injury. The defendant filed postconviction motions that were denied; the defendant appealed from those orders and those appeals have been consolidated with his direct appeal. On appeal, he argues that his motion to dismiss on speedy trial grounds should have been allowed because the delay in bringing him to trial was in excess of the twelve-month limit provided by Mass.R.Crim.P. 36(b)(1)(C), 378 Mass. 910 (1979), and because the delay was in violation of Mass.R.Crim.P. 36(c), 378 Mass. 912 (1979), and in violation of Federal and State constitutional guarantees. The defendant also argues that he is entitled to postconviction discovery of the victim's medical records and to a new trial because the records were not adduced at trial, and that the prosecutor's summation included improper remarks. We affirm.
The defendant was acquitted of assault and battery by means of a dangerous weapon.
These arguments are raised pursuant to Commonwealth v. Moffett, 383 Mass. 201 (1981).
Background. We summarize the facts the jury could have found before turning to the focus of this appeal, which concerns the defendant's speedy trial claims. On May 28, 2009, Jose DeLeon laid his head down on a table in the atrium of a day shelter for homeless adults in Boston, when the defendant approached and began to stab him. An eyewitness testified that the defendant repeatedly stabbed the victim until he collapsed on the floor, where the defendant punched him until security guards intervened. The victim's wounds were life threatening and resulted in the victim's loss of consciousness for seven weeks and multiple permanent scars.
Discussion. The defendant filed a pro se motion for a speedy trial on March 2, 2011. The motion was not acted on and on November 5, 2012, he unsuccessfully moved to dismiss the indictments on rule 36 and constitutional speedy trial grounds. In his amended motion for postconviction relief, the defendant challenged this ruling. Because there has been no evidentiary hearing related to the delay in bringing the defendant to trial, we consider the claims de novo. See Commonwealth v. Rodgers, 448 Mass. 538, 540 (2007).
Because "under rule 36, the docket and minutes of the clerk are prima facie evidence of the facts recorded therein," we are in as good a position as the judges below, neither of whom held an evidentiary hearing, to decide whether rule 36 time limits have run. Barry v. Commonwealth, 390 Mass. 285, 289 (1983). We consider the transcripts of the court events reflected on the trial court docket that have been included in the materials before us.
1. Speedy trial under rule 36(b). The defendant first argues that he was denied a speedy trial under rule 36(b)(1)(C) and additionally, that any delays resulting from competency evaluations or determinations should not be excluded from the calculations because he was competent to stand trial at all relevant periods. See Mass.R.Crim.P. 36(b)(2)(C), 378 Mass. 911 (1979).
A. Rule 36(b)(1)(C). Under rule 36, "a criminal defendant who is not brought to trial within one year of the date of arraignment is presumptively entitled to dismissal of the charges unless the Commonwealth justifies the delay. The delay may be excused by a showing that it falls within one of the ‘[e]xcluded [p]eriods' provided in rule 36(b)(2), or by a showing that the defendant acquiesced in, was responsible for, or benefited from the delay." Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). The defendant was arraigned in the Superior Court on July 27, 2009, and because his trial did not begin until March 5, 2013, a total of 1,317 days later, the Commonwealth must justify 952 days (1,317 days minus 365 days) to avoid dismissal of the charges.
In order to consider whether the time limits under rule 36 have run in this case, it is necessary to consider in detail the period of time between the defendant's arraignment and the commencement of his trial. Although the delays may be grouped in a variety of ways and may be excluded for more than one reason, we focus on four periods that involve essentially two reasons for delay: issues related to competency and benefit to the defendant.
July 27, 2009, to January 15, 2010. The defendant was first charged in a complaint issued in the Boston Municipal Court and upon his arraignment there, an evaluation under G. L. c. 123, § 15(a ), was ordered, with the result that he was committed to Bridgewater State Hospital (BSH) and evaluated pursuant to G. L. c. 123, § 15(b ), for competency to stand trial. On June 15, 2009, BSH found the defendant incompetent to stand trial and concluded that he posed a substantial risk of harm to others and recommended psychiatric hospitalization to address his mental illness. BSH petitioned the Boston Municipal Court to commit the defendant. However, when the complaint was dismissed upon the return of the indictments on July 1, 2009, the BSH petition was never acted on and the defendant was transferred from BSH to a house of correction.
The clock for rule 36 purposes starts on "the return day in the court in which the case is awaiting trial," here the date of the defendant's arraignment in the Superior Court. Mass.R.Crim.P. 36(b)(1)(C). See Reporters' Notes to Rule 36, Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1840 (LexisNexis 2016) ("[I]f ... the Commonwealth elects to proceed by direct indictment in a case commenced by complaint which is within the District Court's jurisdiction ..., the time limits of this rule begin anew upon the return day in the Superior Court").
At arraignment in the Superior Court on the indictments on July 27, 2009, the defendant's attorney discussed the unresolved petition for commitment rendered forty-five days earlier and voiced her concerns that the defendant was not competent to stand trial and required psychiatric hospitalization. Defense counsel obtained a continuance to review the BSH materials and to attain an examination of the defendant by an independent doctor.
A spate of continuances was granted largely as the result of a judge accommodating the defendant's request that the evaluation be conducted by an independent doctor and be conducted at the jail rather than BSH. During this time, the defendant also sought and obtained a new attorney. On January 15, 2010, when an independent evaluation had still not materialized, a judge ordered an examination pursuant to G. L. c. 123, § 15(a ), to be performed by the court psychologist.
Because the continuances were granted at the request of the defense or without objection, see, e.g., Commonwealth v. Jones, 6 Mass. App. Ct. 750, 752-753 (1978) (delay to which defendant acquiesced excluded), or were related to assessing the defendant's competency to stand trial, see, e.g., Commonwealth v. Montgomery, 76 Mass. App. Ct. 500, 503 (2010) (delay resulting from examination for competency excluded), and obtaining new counsel, see, e.g., Commonwealth v. Denehy, 466 Mass. 723, 732 (2014) (delay because defendant was unrepresented and sought replacement counsel excluded), they were excludable.
Moreover, because subjecting a person to trial who "lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense" violates that individual's constitutional rights of due process, the delay was necessary to protect those rights and for the defendant's benefit. Commonwealth v. Hill, 375 Mass. 50, 52 (1978) (issue of competency so fundamental a judge must hold an evidentiary hearing on the question, sua sponte, when the evidence is sufficient to raise a substantial doubt as to the defendant's competence to stand trial).
This period totaling 173 days may be excluded from the computation of rule 36(b) limits.
We recognize that rule 36 contains two additional exclusions that concern competency that may apply here but on which we need not rely. Specifically, Mass.R.Crim.P. 36(b)(2)(A)(i), 378 Mass. 910 (1979), excludes any period of delay resulting from an examination of the defendant on mental competency. The Reporters' Notes to rule 36(b)(2)(A)(i) add that the period shall begin when the examination is ordered, but in this case no examination had been explicitly "ordered." See Reporters' Notes to Rule 36, Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1841 (LexisNexis 2016). Second, rule 36(b)(2)(C) provides that "[a]ny period of delay resulting from the fact that the defendant is mentally incompetent ... to stand trial" shall also be excluded. Here, the examination that resulted in the determination of incompetency occurred in the Boston Municipal Court; we do not determine its effect in Superior Court.
January 15, 2010, to March 4, 2010. On January 15, 2010, as indicated above, a judge ordered the defendant to be examined pursuant to G. L. c. 123, § 15(a ). That same day, the judge agreed with the examiner's recommendation that the defendant be further evaluated for competency and continued the case. At a subsequent hearing on March 4, 2010, the judge stated that absent a current mental health evaluation, he would presume the defendant was competent; he then set a trial schedule.
Because this day already has been counted in the above period, we do not include it in our calculations for this period.
Under Mass.R.Crim.P. 36(b)(2)(A)(i), 378 Mass. 910 (1979), any period of delay resulting from a mental competency examination of the defendant shall be excluded, and the Reporters' Notes specify that this "period shall begin on the date the order for examination is given and shall extend until such date as the court finds the defendant mentally competent." Accordingly, the period from January 15, 2010, the date the examination for competency was ordered, to March 4, 2010, the date on which we will assume, without deciding, that the defendant was found competent, is excluded.
We note that it is not clear whether the judge's conclusion that the defendant was competent was reasonably based on the facts before him, namely the absence of any recent mental health evaluations, but we assume for purposes of this appeal that it signaled the commencement of an includable period in the calculations for determining whether the defendant was afforded a speedy trial. See Commonwealth v. Scionti, 81 Mass. App. Ct. 266, 272-273 (2012) (hearing to assess competency does not necessarily require taking of evidence, but judge must act reasonably based on facts before him or her, including recent mental health evaluations, knowledge of events that occurred in court room, statements by counsel, and impressions of defendant in court room).
This period totaling forty-eight days may be excluded from the computation of rule 36 limits.
June 11, 2010, to February 1, 2012. On June 11, 2010, a judge ordered another competency evaluation under G. L. c. 123, § 15(a ), to assess the defendant's competency to stand trial and to represent himself. The defendant underwent a series of examinations and resulting hospitalizations during which he was examined for competency to stand trial and after two concomitant evidentiary hearings on September 1, 2010, and April 27, 2011, respectively, the defendant was determined to be not competent to stand trial. On February 1, 2012, a District Court judge ruled after a hearing that the defendant was competent.
We note that after this date, the question of the defendant's competence lingered throughout subsequent proceedings, including a judge denying the defendant's motion for a finding of competence on March 23, 2012. Yet, the same judge also ruled that going forward, the time was not to be excluded from rule 36 calculations and he set a hearing date to assess the defendant's competency immediately preceding the trial date of August 23, 2012, which was subsequently continued. When trial ultimately commenced on March 5, 2013, the trial judge inquired of counsel regarding the defendant's competency and was assured that counsel had not observed any indication of incompetence while working with the defendant, which had been since February, 2012.
This period, which began to run on June 11, 2010, the date the examination for competency was ordered and concluded on the date the defendant was found competent, February 1, 2012, was excludable where the defendant was at all relevant times either being examined for competency or found to be incompetent to stand trial. As already noted, rule 36(b)(2)(A)(i) excludes the period of delay resulting from a competency evaluation, beginning with the date the exam is ordered, and rule 36(b)(2)(C), excludes "[a]ny period of delay resulting from the fact that the defendant is mentally incompetent." See Commonwealth v. Montgomery, 76 Mass. App. Ct. at 503.
The Reporters' Notes acknowledge the relationship between these two sections of the rule, noting "that the actual time period under (b)(2)(A)(i) may be extended by (b)(2)(C) to exclude any delay resulting from the fact that the defendant is found mentally incompetent ... to stand trial." Reporters' Notes to Rule 36, Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1841 (2016).
This period totaling 601 days may be excluded from the computation of rule 36 limits.
May 14, 2012, to November 19, 2012. On May 14, 2012, the defendant filed a motion to suppress statements and sought a continuance of his trial date, then set for August 23, 2012. The judge set a new trial date of November 19, 2012, and ruled, with the defendant's consent, that the period from May 14 to November 19, 2012, would be excluded from rule 36 calculations. This period was properly excluded where the defendant requested the delay and benefited from it. See Commonwealth v. Spaulding, 411 Mass. at 504. See also Commonwealth v. Taylor, 469 Mass. 516, 524-525 (2014) ("A defendant must ... explicitly and formally object, on the record, to each and every proposed continuance or delay" and may not preserve his rule 36 rights merely by indicating that he does not waive his right to a speedy trial).
This period totaling 190 days may be excluded from the computation of rule 36 limits.
In conclusion, based on the above calculations, the Commonwealth can justify 1,012 days. As a result, the remaining 305 days are within the one-year limit within which the defendant must be tried.
B. Challenge to the delay based on findings of incompetence. Next, the defendant argues, as he did at trial, that he was competent at all times during these proceedings, thus the delay attributed to the rulings to the contrary on September 1, 2010, and April 27, 2011, are not excludable under rule 36(b)(2)(C).
With respect to the September 1, 2010, ruling rendered by a Superior Court judge (Cratsley, J.) after an evidentiary hearing, the defendant sought relief pursuant to G. L. c. 211, § 3, to a single justice of the Supreme Judicial Court. See Black v. Commonwealth, 459 Mass. 1003, 1003 (2011). When the petition was denied, the defendant appealed to the full court. Ibid. The defendant argued "that he was improperly found incompetent to stand trial due to his religious beliefs or his asserted membership in a certain religious group." Ibid. The court denied his claim because he presented no evidence to support his contention and the Superior Court judge's decision contained no suggestion of such bias. Ibid. The court further concluded that the single justice did not abuse his discretion in denying the petition, where "[t]he judge ruled, based on the evidence presented at the competency hearing as well as his own observations, that [the defendant] did not have the present ability to consult with his attorney, or to conduct his trial pro se with standby counsel, with a reasonable degree of rational understanding." Ibid. That decision is the law of the case and we see no reason to reconsider the issue. See Commonwealth v. Clayton (No. 1), 63 Mass. App. Ct. 608, 610-611 (2005).
We note that the Superior Court judge's decision includes a reference to the initial report of Dr. Miner, which the defendant singles out on appeal as including particularly improper factors. The judge concluded that the defendant's "repeated paranoia about Dr. Jeffrey Min [e]r" evinced the concerns of another examiner who made clear that "[i]n addition to the [defendant's] paranoid thinking, [he] has a tendency to focus on irrelevant detail in an attempt to weave together support for his inflexible fixed belief that he is [a] victim and treated unjustly."
The defendant also challenges the April 27, 2011, Superior Court judge's (Hely, J.) decision, after another evidentiary hearing, whereby the judge found him not competent to stand trial and committed him to BSH, pursuant to G. L. c. 123, § 8(b ). The defendant claims that the judge improperly relied on the findings of Dr. Anna Myers, which the defendant claims were improperly based on his assertions of his religious freedom and criticism of Dr. Miner.
Dr. Myers, in her report and at the hearing, gave an opinion that the defendant "suffers from paranoid schizophrenia, which is a substantial disorder of thought, that in his case compromises his judgment behavior and capacity to recognize reality." Dr. Myers detailed this conclusion in her report.
"It is further my opinion that [the defendant] requires involuntary psychiatric hospitalization, in that failure to hospitalize him would create a substantial likelihood of harm to others. With regard to this risk, I note that the defendant is accused of an extremely violent assault that reportedly rendered the alleged victim comatose. In addition, [the defendant] has displayed assaultive behavior during prior BSH admissions. For example, in 2009 he reportedly fought with another patient and then, in a separate incident, threw hot coffee at a correctional officer. Again during a more recent BSH admission in June 2010, [the defendant] refused orders from correctional staff and became verbally aggressive. Reportedly, he then attempted to resist the officers physically, necessitating a use-of-force in order to contain his behavior.
"During the present admission to BSH, [the defendant] has demonstrated better behavioral control. However, he remains paranoid and ‘volatile’ in the words of the Sergeant on his treatment unit. He has also previously described his mission as ‘to fight anyone who attacks me.’ Lastly, he remains paranoid about all of the individuals involved in his case, and paranoia is a risk factor for assaultive behavior. Given his paranoia and history of violence, I therefore believe that [the defendant] is at risk for future violence if left untreated (as would be the case in a penal setting)."
Dr. Myers also noted that prior evaluations of the defendant's mental health, including Dr. Miner's report, "had very little to do with the defendant's religion." Rather, Dr. Myers testified that the defendant takes "one small piece of data and generalizes it to attempt to prove an overarching point, such as, ‘because I'm a member of this religion, I'm therefore immune from prosecution,’ " and the defendant's thinking is "irrational and not logical."
The defendant also suggests that Dr. Myers's and other professionals improperly relied on a report by Dr. Nestor, a private evaluation the defendant had completed on August 2, 2009, in which Nestor concludes the defendant is not competent to stand trial. Dr. Myers made clear in her testimony however, that she could form an opinion without considering Dr. Nestor's report.
The judge found that Dr. Myers's testimony was "highly reliable and convincing" and based on that testimony concluded that the defendant was not competent to stand trial. We conclude, particularly where the defendant has failed to adduce any credible evidence to the contrary, that the judge did not abuse his discretion in ruling that the defendant was not competent to stand trial. See Commonwealth v. Scionti, 81 Mass. App. Ct. 266, 272-273 (2012).
Finally, we conclude there is no merit to the defendant's contention that Dr. Nestor's report, a report the defense independently obtained, was improperly released and was prejudicial where the defendant has failed to identify any ruling related to his competency that turned on that report. See note 11, supra.
Because we conclude that neither judge abused his discretion in concluding the defendant was incompetent to stand trial, the exclusion in rule 36(b)(2)(C) applies.
2. Constitutional and rule 36(c) speedy trial claims. The factors to consider in determining whether a defendant's constitutional speedy trial right has been denied are "the length of the delay, the reasons for the delay, the extent of the defendant's assertion of his right to a speedy trial, and the prejudice, if any, to the defendant." Commonwealth v. Edgerly, 390 Mass. 103, 104 (1983), citing Barker v. Wingo, 407 U.S. 514, 530 (1972). In this case, " ‘the defendant's constitutional right [to a speedy trial] under the Barker v. Wingo analysis will be protected by considering the factors entitling the defendant to a dismissal under [ rule] 36(c)..., that is, if "(1) the conduct of the prosecuting attorney in bringing the defendant to trial has been unreasonably lacking in diligence and (2) this conduct on the part of the prosecuting attorney has resulted in prejudice to the defendant" ’ (footnote omitted)." Commonwealth v. Lopez, 86 Mass. App. Ct. 100, 104 (2014), quoting from Commonwealth v. Willis, 21 Mass. App. Ct. 963, 964 (1986), quoting from Mass.R.Crim.P. 36(c).
Here, the defendant's assertions that he was "kicked around" and "thrown in the hospital" and that discovery was stalled, are without merit and do not support a claim of prejudice. The defendant also claims that because the victim's scars had healed by the time of trial and the victim had many scars unrelated to this incident, the delay impaired his ability to challenge the contention that he caused the alleged injuries. As the trial judge ruled, the "argument lacks merit" where there was ample "corroborating evidence of the victim's stabbing injuries."
We find no merit in the defendant's additional claim that his changes in counsel were not for his benefit. Furthermore, we have considered the arguments raised pursuant to Commonwealth v. Moffett, 383 Mass. 201 (1981), and conclude that they are unavailing.
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Judgments affirmed.
Order denying motions for postconviction discovery and relief affirmed.
Order denying motion for reconsideration of denial of motions for postconviction discovery and relief affirmed.
Order denying amended motion for postconviction relief affirmed.