Opinion
20-P-1012
11-14-2022
COMMONWEALTH v. JAMES ELLIS.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant, James Ellis, was convicted of assault and battery on a family or household member. See G. L. c. 265, § 13M (a). On appeal, the defendant claims that: (1) his right to a speedy trial under Mass. R. Crim. P. 36 (b), 378 Mass. 909 (1979), was violated; (2) he was denied his State and Federal constitutional rights as well as rights under Mass. R. Crim. P. 36 (c), 378 Mass. 912 (1979), to a speedy trial; (3) his motion for a mistrial should have been allowed; and (4) medical records were improperly admitted. We affirm.
Discussion.
The defendant contends that speedy trial standards required the dismissal of the complaint under rules 36 (b) or (c) because the Commonwealth's failure to provide mandatory discovery caused an inexcusable delay from which he suffered prejudice. We address each claim in turn.
1. Rule 36 (b).
Generally, "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." Commonwealth v. Dirico, 480 Mass. 491, 497 (2018), quoting Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). See Mass. R. Crim. P. 36 (b) (1) (c), 378 Mass. 910 (1979). Here, the defendant was arraigned on January 14, 2016, and the speedy trial clock began to run on January 15, 2016. See Mass. R. Crim. P. 36 (b) (3), 378 Mass. 912 (1979); Barry v. Commonwealth, 390 Mass. 285, 291-292 (1983). The jury were empanelled on April 4, 2017, some 445 days later. The parties agree that the one-year period under rule 36 (b) was exceeded by eighty-one days, and therefore established a prima facie violation. See Commonwealth v. Graham, 480 Mass. 516, 517 (2018) (defendant may establish prima facie violation of rule 36 by demonstrating more than twelve months elapsed between arraignment and trial).
"The burden then shifts to the Commonwealth to justify the delay, either by showing that [the requisite number of days] falls within one of the excluded periods enumerated under rule 36 (b) (2) or by showing that the defendant acquiesced in, was responsible for, or benefited from the delay" (quotations and citation omitted). Graham, 480 Mass. at 517. See also Commonwealth v. Taylor, 469 Mass. 516, 528 (2014).
As a threshold matter, the Commonwealth asserts that the defendant has waived his speedy trial rights under rule 36 (b) because he did not file a written motion to dismiss under that rule in the trial court. The defendant briefly mentioned his constitutional right to a speedy trial in his second motion to dismiss under rule 36 (c), filed before the one-year period had elapsed, but did not file a motion under rule 36 (b) either before or after the one-year period had run. As the Supreme Judicial Court has explained in a slightly different context, where a rule 36 (b) motion and little else was filed, "because the defendant's motion was not accompanied by an affidavit bearing on the critical facts at issue and a memorandum of law as required by Mass. R. Crim. P. 13 (a) (2) and (4), the defendant was not entitled to be heard on the motion." Commonwealth v. Mattos, 404 Mass. 672, 676 (1989). We need not address whether the failure to file a rule 36 (b) motion constituted a waiver of his rights under the rule, or whether we would review a waived rule 36 (b) claim for a substantial risk of a miscarriage of justice, because we conclude that the rule 36 (b) claim lacks merit.
Trial counsel, who is also appellate counsel, orally renewed her motion to dismiss on February 27, 2017, on the ground stated in the second motion to dismiss, which was founded on rule 36 (c). She also objected to a continuance on the ground that the case was more than one year old.
Rule 36 (b) is a case management rule which does not implicate questions of constitutional dimension. See Commonwealth v. Denehy, 466 Mass. 723, 735 n.18 (2014). The Supreme Court has urged caution with respect to waiver in the context of constitutional claims. See Barker v. Wingo, 407 U.S. 514, 528 (1972).
The Commonwealth relies on Commonwealth v. Atkinson, 15 Mass.App.Ct. 200, 205 (1983), to claim that the speedy trial claim has been waived for lack of a written motion. Mattos and Atkinson were decided before Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002), applied the substantial risk of a miscarriage of justice standard to the review of waived claims.
For purposes of determining what periods of time were excludable under rule 36 (b), the case may be divided into three time periods. The first is the time from arraignment through pretrial conferences. The second is the period from October 2016 to January 2017, when the parties litigated the defendant's motion to compel and the defendant twice sought to have the case dismissed under rule 36 (c) for alleged Brady violations and the failure to timely produce a 911 recording. The third covers the time period in which the case was continued for trial after the rule 36 (c) motions to dismiss were denied. We review each time period in turn, relying on the docket, motions, and transcripts provided. See Commonwealth v. Roman, 470 Mass. 85, 93 (2014) citing Barry, 390 Mass. at 289 ("For purposes of a rule 36 calculation of excludable periods, the docket and the clerk's log are prima facie evidence of the facts recorded therein").
See Brady v. Maryland, 373 U.S. 83 (1963).
a. First time period.
After arraignment, the case was scheduled for a first pretrial conference on February 22, 2016, and for disposition on March 23, 2016. The clock continued to run during these initial conferences. See Graham, 480 Mass. at 532-533. However, the matter was then continued twice from March 23, 2016, to May 26, 2016, without objection. This period of sixty-four days is excludable because the defendant acquiesced in, was responsible for, or benefited from the delay. See Dirico, 480 Mass. at 499. "A failure to object to a continuance or other delay constitutes acquiescence." Commonwealth v. Tanner, 417 Mass. 1, 3 (1994).
b. Second time period.
Between October 4, 2016, and December 16, 2016, the parties engaged in substantial litigation regarding the Commonwealth's failure to produce the recording of the victim's 911 call. A motion judge granted the defendant's motion to compel under Mass. R. Crim. P. 14, as appearing in 442 Mass. 1518 (2004), in October of 2016. At a hearing on a first motion to dismiss on November 8, 2016, the prosecutor represented that a 911 recording from the victim's father (first recording) had been produced in June, but the recording of the 911 call from the victim (second recording) no longer existed because of a "system crash" at the Boston Police Department. A second motion judge denied the motion to dismiss on the ground that the second recording did not exist.
Subsequent events prompted a second motion to dismiss, in which defense counsel represented that on or about November 30, 2016, she spoke with the Boston Police Department's keeper of the records and learned that the second 911 recording existed. Defense counsel filed the second motion to dismiss under rule 36 (c), claiming that the second recording had been in the prosecutor's file since June of 2016, but the prosecutor had failed to disclose it, and alleging a Brady violation. In an email exchange with defense counsel, the prosecutor represented that she was unaware that the second recording had been recovered and put in her file. The prosecutor advised defense counsel on November 30, 2016, that the second recording, of the victim's 911 call, "is presently available for you and can be picked up at any time," and thus "permit[ted] the defense to discover, inspect and copy" it, Mass. R. Crim. P. 14 (a) (1) (A), as amended, 444 Mass. 1501 (2005). Ultimately, at a hearing held on December 16, 2016, which was heard by the first motion judge, the second motion to dismiss was denied, because the prosecutor produced the second recording in advance of trial, and there was no prejudice to the defendant. The December 8, 2016, trial date was postponed to January 9, 2017.
On appeal the Commonwealth asserts that, other than the motion to compel, the time spent on these motions should be excluded because the time was attributable to the defendant's motions. Dirico, 480 Mass. at 498. See Spaulding, 441 Mass. at 505 n.4. ("The filing of a motion to dismiss tolls the running of rule 36 time"). However, "[w]here there is no reasonable dispute that the discovery in question is, in fact, mandatory pursuant to rule 14 (a) (1), and where the Commonwealth cannot justify its delayed production, the speedy trial clock ordinarily should continue to run while the motion is resolved." Taylor, 469 Mass. at 528. See Commonwealth v. Amidon, 428 Mass. 1005, 1010 (1998) (delay caused by Commonwealth's unjustified untimely production not excludable as beneficial to defendant); Commonwealth v. Wysocki, 28 Mass.App.Ct. 45, 49-50 (1989) (time sought by Commonwealth to comply with routine discovery requests not excludable).
On this record, we are unable to determine whether the Commonwealth can justify delayed production under Taylor because the record is inadequate. See, e.g., Commonwealth v. Bourdon, 449 Mass. 1109 (2007), S.C., 71 Mass.App.Ct. 420, 421 (2008). The defendant did not join the issue by bringing a motion to dismiss on speedy trial grounds under rule 36 (b), the Commonwealth did not proffer any further explanation in the context of the rule 36 (c) motion, and the motion judge did not ask for one. The only matter the motion judge had before him on the second motion to dismiss was a request for sanctions under rule 36 (c). It is clear from the transcripts that he considered himself to be hearing a motion for sanctions and naught else, where the one-year period under rule 36 (b) had not run.
The lack of a record on speedy trial matters seriously impedes our ability to conduct a meaningful rule 36 (b) analysis. Therefore, in an abundance of caution, and like the rule 36 (c) motion judge, we assume (without deciding) that both recordings were found and transferred to the prosecutor's file in June of 2016. We also assume (without deciding) that the speedy trial clock continued to run during the time the discovery motions were litigated. Similarly, we do not exclude the period between January 9, 2017, and February 23, 2017, when the Commonwealth moved to postpone the trial over objection so that a new trial prosecutor, who had not been involved in the delayed production, could be assigned to the case.
c. Third time period.
The third and final time period covers two additional extensions of time, the sixth and seventh in the case. On February 23, 2017, although the Commonwealth was ready for trial, a third motion judge postponed that trial until March 13, 2017, due to court congestion. The defendant objected and orally renewed his motion to dismiss. The judge ruled that "the Commonwealth is answering ready, so I would not dismiss the case in that situation."
"Court congestion is not a new occurrence, and resulting delays are includable in the rule 36 calculation unless the judge makes the . . . 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] or the defendant acquiesced in, was responsible for, or benefited from the delay." Commonwealth v. Davis, 91 Mass.App.Ct. 631, 637-638 (2017). See Mass. R. Crim. P. 36 (b) (2) (F), 378 Mass. 911 (1979). The defendant did not acquiesce in the continuance, and there are no findings that would exclude the time attributable to this continuance from this record. Accordingly, this time was includable.
The Commonwealth sought the seventh and final continuance on March 8, 2017, due to a death in the prosecutor's family. Defense counsel was not present. The motion judge, who was also the second motion judge, allowed the motion, and the case was rescheduled from March 13, 2017, to April 3, 2017. Given the history of the case, we treat the ex parte allowance of the motion as a ruling made over objection.
Jury selection began that day and the jury were empanelled on April 4, 2017.
Although the better practice is to make the necessary findings regarding the ends of justice explicitly, such findings may be implied from the record in this instance. See Davis, 91 Mass.App.Ct. at 637 n.11. The trial prosecutor experienced a death in the family. "The legitimate illness of a litigant" or counsel "is generally 'good cause' for granting a continuance." Monahan v. Washburn, 400 Mass. 126, 129 (1987). The death was a circumstance "beyond [her] control." Id. The prosecutor had already been substituted once, and the judge could have permissibly concluded that sending the case to trial on short notice with another prosecutor would, in these circumstances, not have been in the interests of justice. Cf. Commonwealth v. Clegg, 61 Mass.App.Ct. 197, 201-202 (2004). We understand the judge's ruling to have been based on his conclusion that "the ends of justice served by taking such action outweighed the best interests of the public and the defendant in a speedy trial." Davis, supra. Accordingly, the twenty-two days attributable to the final continuance is excluded.
The final number of excluded days is eighty-six days. When these days are removed from the total 445 days, 359 days remain. The case went to trial within the time period required by rule 36 (b).
2. Constitutional and rule 36 (c) claim.
The defendant's second motion to dismiss under rule 36 (c) invoked his constitutional right to a speedy trial, and he also argued it in that manner. After a hearing, the first motion judge denied the second motion to dismiss on the ground that the defendant had the second recording, and the delayed production did not prejudice the defendant.
The defendant's right to a speedy trial was constitutionally protected under the Sixth Amendment to the United States Constitution and art. 11 of the Massachusetts Declaration of Rights. To determine whether a defendant's constitutional speedy right trial has been denied, "the relevant factors [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).
"Depending on the nature of the charges, the lower courts have generally found postaccusation delay 'presumptively prejudicial' at least as it approaches one year." Doggett v. United States, 505 U.S. 647, 652 n.1 (1992). However, largely for the reasons stated above, we do not conclude that the delay here exceeds constitutional bounds. The delay was not substantial, contrast id. at 652 (eight and one-half years); Commonwealth v. Beckett, 373 Mass. 329, 331 (1977) (fifteen years), and approximately two months of that delay is attributable to the defendant's willingness to delay the trial in order to explore a plea agreement. See Commonwealth v. McNair, 98 Mass.App.Ct. 750, 757 (2020) (considering reasons for delay). The delays associated with court congestion and the death in the prosecutor's family, while nominally attributable to the Commonwealth, do not weigh so heavily as to constitute a deliberate effort to impede the progress of trial. Of all the factors, the delayed production of the second 911 recording falls most heavily on the Commonwealth, but as is discussed below, the recording was produced in advance of trial, the defendant used it to cross-examine the victim, and the prejudice arising from the delayed production is ephemeral.
"Prejudice to the defendant should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect, which include the interests (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired" (quotations omitted). Dirico, 480 Mass. at 507, quoting Barker, 407 U.S. at 532. Here, the defendant was not incarcerated. "There is no indication in the record that the delay precluded the defendant from making his best defense. While a showing of trial prejudice is not necessary to prove a denial of the right to speedy trial (Moore v. Arizona, 414 U.S. 25 [1973]), the absence of such prejudice is an important factor to be considered." Commonwealth v. Burhoe, 3 Mass.App.Ct. 590, 594-595 (1975). Here, the defendant had the second recording in time for trial and was able to use it for purposes of cross-examination.
The defendant also claims that he was prejudiced because he was forced to reveal his Bowden defense based on inadequate investigation, but that defense would not have been unanticipated, and would have been revealed as soon as he issued subpoenas for government witnesses. Indeed, his subpoenas to the first prosecutor and the keeper of the records elicited a motion to quash, which was allowed. Finally, he claims that the collateral effects of the delay had a negative impact on his divorce and custody proceedings, causing him the kind of stress and anxiety that Barker eschews. However, he has not demonstrated that the custody issues he faced were attributable to the delay in this case as opposed to the domestic violence charges themselves. See United States v. Netterville, 553 F.2d 903, 916 (5th Cir. 1977). Contrast State v. Wheaton, 528 A.2d 1109, 1112 (R.I. 1987).
The defendant has not argued the denial on appeal.
3. Mistrial.
The defendant contends that the judge erred in denying his motion for mistrial because the victim impermissibly testified to prior bad acts and hearsay evidence. On direct examination at trial, she testified that "[The neighbor] grabbed me really quickly and said, 'Come in, come in.' . . . [The neighbor] said, we were worried about you for a long time." Defense counsel objected and moved for a mistrial.
"The decision whether to declare a mistrial is within the discretion of the trial judge." Commonwealth v. Torres, 86 Mass.App.Ct. 272, 280 (2014), quoting Commonwealth v. Bryant, 447 Mass. 494, 503 (2006). "Where a party seeks a mistrial in response to the jury's exposure to inadmissible evidence, the judge may correctly rel[y] on curative instructions as an adequate means to correct any error and to remedy any prejudice to the defendant" (quotations omitted). Id.
Immediately following a sidebar conference, the judge struck the response from the record and instructed the jury to disregard the answer. The judge also instructed the jury at the close of the evidence not to consider evidence that had been stricken, and the jury are presumed to have followed these instructions. See Commonwealth v. Cheremond, 461 Mass. 397, 414 (2012). The judge permissibly exercised her discretion in denying the motion for mistrial.
4. Medical records.
The defendant contends that the trial judge erred in admitting the victim's medical records because the records were not relevant and the Commonwealth did not provide notice under G. L. c. 233, § 79G (§ 79G). "Generally, determinations as to the admissibility of evidence lie within the sound discretion of the [trial] judge" (quotation and citation omitted). Commonwealth v. Jones, 464 Mass. 16, 19-20 (2012).
"Records kept by [a] hospital[] . . . may be admitted . . . as evidence in the courts of the commonwealth so far as such record relate to the treatment and medical history of such cases." G. L. c. 233, § 79 (§ 79). The records are admissible under § 79, and the admission of specified hospital medical records are governed by a related provision, § 79G, which requires notice to the opposing party. See Commonwealth v. Irene, 462 Mass. 600, 612-613 n.20 (2012). Defense counsel objected in part on the ground that she received some of the records late; she also asserted she had not received proposed redactions and the records were highly prejudicial. The judge declined to exclude the records because the defendant received all of the records in March of 2017 and had adequate notice. She did order certain redactions.
"Whether evidence is relevant and whether its probative value is substantially outweighed by its prejudicial effect are matters entrusted to the trial judge's broad discretion and are not disturbed absent palpable error" (citation omitted). Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010). Here the records were relevant to show the injuries sustained by the victim. The judge did not abuse her discretion in admitting the medical records as redacted.
The defendant's request for fees is denied.
Judgment affirmed.
The panelists are listed in order of seniority.