Opinion
20-P-912
06-18-2021
COMMONWEALTH v. Sarah K. CUNNINGHAM.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was convicted of operating under the influence of alcohol, G. L. c. 90, § 24, and negligent operation of a motor vehicle, id. On appeal, her first argument is that the trial court judge erred in failing to dismiss the complaint on speedy trial grounds. See Mass. R. Crim. P. 36 (b), as amended, 422 Mass. 1503 (1996) ( rule 36 ).
The defendant was arraigned on May 27, 2015, but not tried until October 29, 2018. Thus, a total of 1,252 days elapsed between the arraignment and the trial.
"Under rule 36, if a defendant is not ‘tried within twelve months after the return day,’ he or she is ‘entitled upon motion to a dismissal of the charges.’ " Commonwealth v. Denehy, 466 Mass. 723, 729 (2014), quoting Mass. R. Crim. P. 36 (b) (1) (C), (D). Because much more than one year elapsed between the return date and the trial, the burden shifted to the Commonwealth to justify the delay. See id. Periods of delay may be excused by a showing that they are either within one of the excluded periods provided for 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). In determining whether a year elapsed between the return date and the trial, such periods are excludable. All other periods of delay are includable and if the number of includable days is over 365, the defendant is entitled to dismissal.
"When a claim is raised under rule 36, the docket and minutes of the clerk are prima facie evidence of the facts recorded therein." Barry v. Commonwealth, 390 Mass. 285, 289 (1983). We have transcripts of only a few of the pretrial proceedings that took place in this case. We were informed by counsel at argument that none of the others were recorded. Each party has prepared a chart purporting to show which days are includable and excludable in their view, primarily by reference to the often cryptic notations on the docket sheet and in the clerk's minutes. Each side has also argued in some detail why that party believes these periods are includable or excludable. In the trial court, only the defendant put in any additional evidence about the pretrial proceedings in the form of an affidavit by trial counsel describing, among other things, which continuances were objected to. However, in light of our disposition of the case, we need not rely on that evidence, nor need any factual differences that might be perceived between that affidavit on the one hand, and the docket sheet and clerk's minutes on the other, be resolved.
The defendant filed a motion to dismiss due to speedy trial grounds on February 5, 2018, and renewed her motion to dismiss on that ground on September 27, 2018. Both motions were accompanied by an affidavit by trial counsel, and both were denied without explanation by the trial judge.
Rather than going through each party's discussion of each period of delay in question, something with which the parties are familiar, we instead begin with the Commonwealth's position that 209 of the 1,252 days are "includable" in the calculation of the length of unexcused delay between arraignment and trial. Beyond that, we need examine only three periods that the Commonwealth contends are excludable in order to resolve the case.
The first is August 27 to November 23, 2015, a period of 88 days. The docket indicates that on August 27, 2015, the defendant filed a motion to inspect evidence reports on which no action was taken. On that same date, the court scheduled "discovery compliance & jury election" for November 23, 2015. Before the motion judge, the Commonwealth argued only that because the court had continued the proceedings to "a second pretrial date" on November 23, 2015, and the defendant had not objected, the days between August 27 and November 23 should be excluded. It relied on rule 36 (b) (2) (F) -- but that rule excludes delays due to continuances only where the judge "granted the continuance on the basis of his findings that the ends of justice served by taking such action outweighed the best interests of the public and the defendant in a speedy trial." Unsurprisingly, since this was just a few months after arraignment, the judge made no such finding, which must be set forth in the record of the case even in the absence of an objection if it is to trigger the protection of rule 36 (b) (2) (F).
Before us, the Commonwealth now argues something it did not below, that the "delay from hearings on pretrial motions" shall be excluded. This, of course, is true under rule 36 (b) (2) (A) (v). The Commonwealth's argument about this period, however, has nothing to do with a hearing. The Commonwealth merely writes, "[t]he defendant is responsible for filing the pre-trial motion for discovery, so the [88] days from the day after the first pre-trial date, 8/28/2015, to the discovery compliance and election date, 11/23/2015, are excludable."
The Commonwealth, which bore the burden in the trial court to demonstrate that each period of delay was excusable, has put nothing in the record, nor did it say anything in its brief below, to indicate that a hearing was necessary, scheduled, or held on this discovery motion. The Commonwealth, thus, has failed to meet its burden to demonstrate that this 88-day period is excludable. Therefore, it must be included in the calculation of unexcused days of delay.
Up to 30 days of any period that a motion is under advisement may be excluded under rule 36 (b) (2) (A) (vii). The Commonwealth has not asserted that the motion that was never acted upon remained under advisement following the hearing on August 27, 2015.
On February 5, 2018, the defendant filed a motion to dismiss, which was heard and denied that same day. Trial was continued until March 26, 2018, over the defendant's objection. The Commonwealth argues before us that that period is "excludable because the defendant was responsible by filing the motion to dismiss." The continuance was not a result of a hearing on the motion or the court having taken it under advisement. Rather, the motion was heard and denied the day it was filed. The 49 days following that denial are therefore includable. Indeed, in the trial court, the Commonwealth conceded that these days were included.
Third, we consider the 77-day period from July 12 to September 27, 2018. This was a continuance due to court congestion. In the trial court, defense counsel's affidavit stated that the defendant objected to this continuance, and the Commonwealth conceded that there was an objection by the defendant to this continuance. If a continuance due to court congestion is objected to, it is includable. See Commonwealth v. Lougee, 485 Mass. 70, 79 n.5 (2020). On appeal, the Commonwealth now asserts that there was no objection without providing any explanation as to its change in position. But having conceded that fact in litigating the motion below, depriving the defendant of the opportunity to provide further evidence on the point, the Commonwealth, which of course has itself presented no evidence on the question beyond the absence of a notation in the docket sheet and clerk's minutes, cannot now take a position inconsistent with its position below. E.g., Brown v. Quinn, 406 Mass. 641, 646 (1990) (party was estopped from reversing its earlier position where party's current posture on appeal was inconsistent with its position below).
Because adding these three periods to the 209 includable days conceded by the Commonwealth results in a total number of includable days greater than 365, we need not determine whether any other contested periods are includable. Our conclusions with respect to these three periods alone require reversal.
We note that with respect to many other periods about which the parties disagree, the affidavit of counsel for the defendant, which asserts that objections were made that are not reflected in the docket, may well raise a genuine issue of material fact with respect to that question. No remand is required for resolution of any such fact question, however, in light of our conclusion described in the text.
In light of our conclusion, we need not reach any of the other arguments raised by the defendant.
The judgments are reversed, the verdicts are set aside, and the case is remanded to the trial court with instructions that the complaint be dismissed under rule 36.
So ordered.
Reversed, set aside, and remanded