Opinion
No. 12–P–637.
2013-08-13
COMMONWEALTH v. Brendan M. McGUINESS.
By the Court (GREEN, HANLON & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant's appeal from two convictions in Superior Court challenges the order denying his motion to dismiss the indictments pursuant to Mass.R.Crim.P. 36, as amended, 422 Mass. 1503 (1996), for failing to bring his case to trial within one year. Only one period of time is at issue, the time between December 2, 2010, and February 17, 2011. If that period was properly excluded from the one-year calculation, the motion was properly denied. If not, the motion should have been allowed and the case dismissed.
The circumstances of the court hearing on December 2, 2010, are significant. The hearing began when the judge announced that the court had received a “very comprehensive” report from a psychiatrist at Bridgewater State Hospital, who had examined the defendant on the issue of criminal responsibility at the request of the Commonwealth. The judge stated that, pursuant to the teaching of the Supreme Judicial Court in Commonwealth v. Sliech–Brodeur, 457 Mass. 300, 317–318 (2010), the report, which contained statements made by the defendant, would not be made available until the defendant raised a criminal responsibility defense at trial, “unless there is an agreement between the parties as to its release .” He then asked, “[W]here do we go from here? Do we have a trial date?” Defense counsel replied, “I am ready to select a trial date .” He also said that, after consultation with his client, he was filing a motion to have the report released to both parties. The judge asked additional questions of counsel and the defendant, clarifying the defendant's intent to waive any claim of confidentiality relating to the report. Apparently satisfied, the judge then allowed the motion.
The clerk asked the judge, “Trial date, Your Honor, please.” The judge said, “Counsel?” Defense counsel replied “We had discussed February 17th as being amenable to both our schedules and an appropriate day in the court calendar.” The prosecutor agreed that this representation was accurate, and the case was scheduled for trial on February 17, 2011.
It is not reasonable to read this exchange other than as an explicit agreement by the defendant to continue the case until February 17. The defendant argues that “[t]rial counsel never stated during this short hearing that he needed more time to prepare for trial based on the new report, and neither did the prosecutor.” However, defense counsel also did not say, “Ready for trial, your honor.” Far from objecting to the scheduled day, defense counsel asked for that day, after apparently agreeing with the prosecutor that it would accommodate everyone's schedule.
The defendant argues that Commonwealth v. Weed, 82 Mass.App.Ct. 123, 127 (2012), provides support for his argument. In Weed, “[t]he defendant's case was on the status list or trial list without impediment to trial [for] two periods reflect[ing] ... eighty-two days of delay.” Id. at 126. The motion judge ruled that time excludable on the reasoning that “because the defendant had not objected to being placed on the status list nor to being placed on the trial list, and because he had not requested a trial date be set, he had ‘implicitly “acquiesced in the passage of time,” ‘ quoting from Commonwealth v. Marable, 427 Mass. 504, 508 (1998).” Commonwealth v. Weed, supra at 126–127. We disagreed, holding that “[d]uring the periods when a criminal case is placed on a status list or trial list, the ‘responsibility ... passe[s] to the Commonwealth’ to set the case for trial.” Id. at 127, quoting from Commonwealth v. Spaulding, 411 Mass. 503, 508 (1992).
This case is very different from Weed, and from the situation addressed there; the rule itself would be meaningless if cases were allowed to languish on a status or trial list, with no date in sight. See Barry v. Commonwealth, 390 Mass. 285, 296 n. 13 (1983) (“[ W]here the case is not continued by agreement, and the district attorney simply sets a trial date, the intervening period will be included in the computation of the time limits under the rule” [emphasis supplied] ); Commonwealth v. Marable, 427 Mass. at 507 n. 9.
Here, we are satisfied that the defendant agreed to the trial date he had chosen with the prosecutor. See Commonwealth v. Pereira, 82 Mass.App.Ct. 344, 346 (2012) (“[I]f a defendant ‘acquiesced in, was responsible for, or benefited from the delay,’ the period of that delay is ... excluded from the computation. Commonwealth v. Rodgers, 448 Mass. 538, 540 [2007], quoting from Commonwealth v. Spaulding, 411 Mass. [at 504]”). The time period in question did not count against the one-year deadline, and the motion to dismiss was properly denied.
Judgments affirmed.