Opinion
10-P-1387
12-15-2011
COMMONWEALTH v. DONALD SEVIGNY.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On January 5, 2007, the defendant, Donald Sevigny, was charged with several offenses related to operating a motor vehicle while under the influence of intoxicating liquor. A jury trial commenced on January 13, 2010. He was convicted of operating a motor vehicle while under the influence of intoxicating liquor, third offense, and negligent operation of a motor vehicle.
The charges included operating a motor vehicle while under the influence of intoxicating liquor, third offense; negligent operation of a motor vehicle; possession of a class D substance; possession of a class C substance; and a civil motor vehicle infraction.
On appeal, the defendant challenges the denial of his pretrial motion to dismiss for failure to grant him a speedy trial, claiming that his rights under Mass.R.Crim.P. 36, 378 Mass. 909 (1979), and his constitutional rights were violated. We affirm.
Under rule 36, '[a] defendant . . . shall be brought to trial . . . within twelve months after the return day in the court in which the case is awaiting trial.' Mass.R.Crim.P. 36(b)(1)(C). If a trial is not held within the twelve-month time limit, the defendant is entitled to dismissal of the pending charges against him. Mass.R.Crim.P. 36(b)(1). The time limit does not, however, include periods or delays that 'the defendant acquiesced in, was responsible for, or benefited from.' Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992).
'[R]ule 36 places certain obligations on all parties involved, including the prosecution, the court, and defendants.' Commonwealth v. Lauria, 411 Mass. 63, 68 (1991). The district attorney bears the responsibility for setting a trial date. See Barry v. Commonwealth, 390 Mass. 285, 296 n.13 (1983). However, defendants still are obligated to object to a delay and are responsible for 'press[ing] their case through the criminal justice system.' Id . at 297.
At the outset, we note that there were multiple needless delays, caused by all parties, that ordinary diligence would have addressed. Once the case aged, it was incumbent upon the court and the parties to move to trial expeditiously. Instead lengthy continuances were given.
The Commonwealth was ordered at the February 7, 2007, pretrial conference to provide police reports and recordings of 911 telephone calls, and was unable to do so on May 9, 2007; June 12, 2007; July 23, 2007; and August 6, 2007. What took months should have taken a few days at most. Similarly, after claiming on May 14, 2009, that his client was denied his right to a speedy trial, defense counsel rejected all offered trial dates until January 12, 2010.
The defendant's rule 36 motion to dismiss was denied because the motion judge calculated that, at most, only 310 days could be charged to the Commonwealth. The defendant claims that the judge erred in not including four specific time periods in the total amount of days charged to the Commonwealth.
May 14, 2009 -- January 12, 2010. The defendant claims that the entire period between the original May 14, 2009, trial date and the January 12, 2010, motion hearing date should be charged to the Commonwealth. On May 14, 2009, the Commonwealth was not prepared for trial and moved for a continuance, over the defendant's objection. A different judge granted the continuance, but stated that '[t]his will count against the Commonwealth for rule 36 - any further continuances.' As a result, the Commonwealth requested a trial date be scheduled as quickly as possible. The next available date, i.e., June 25, 2009, was offered, but defense counsel had another trial on that day in Waltham. Trial dates of August 25, 2009; August 26, 2009; and dates in November and December also were offered, but continuously were rejected by defense counsel. Trial eventually was scheduled for January 12, 2010.
We agree with the motion judge that the Commonwealth should not be charged all of the time period. Although the initial judge stated at the outset on May 14, 2009, that the continuance requested by the Commonwealth would be included in rule 36 calculations, the discussion as to the actual trial date occurred later. It is clear that the lengthy delay eventually settled upon benefited the defense, whose counsel had other obligations on all of the earlier court dates offered. Thus the period between August 27, 2009, and the motion hearing on January 12, 2010, appropriately was excluded. Indeed the judge permissibly could have excluded the days starting from the first available trial date offered, June 25, 2009.
August 6, 2007 -- November 13, 2007; and October 16, 2008 -- February 11, 2009. The defendant also claims that the time periods from August 6, 2007, to November 13, 2007, and from October 16, 2008, to February 11, 2009, wrongly were excluded.
On August 6, 2007, the defendant's motion for sanctions concerning a failure to provide discovery was denied, and he requested a trial date, which was set for November 14, 2007, with no objections from the defendant and no request for an earlier date. On November 14, the case was dismissed at the request of the Commonwealth.
While we do not have a transcript of the August 6, 2007, hearing, it appears from elsewhere in the record that the defendant requested a trial date and it was set for November 14, 2007.
On February 19, 2008, the Commonwealth brought the case forward again and the defendant was arraigned. On October 16, 2008, the motion judge denied a defense motion to dismiss and she set the trial date for February 12, 2009, again without objection from the defendant.
Judge: 'I gave you the date of February 12th. Is there any indication on the docket that that's objected to?'
Clerk: 'No.'
Judge: 'No?'
Defense counsel: 'Andbut again, in terms ofII'm not sure I have to object. But I don't think there [was] acquiescence on the part of the defense, because we were looking for a trial date atyou know, at the suppression; the soonest possible time.
'My understanding is, I couldn't get the trial date until after the hearing or the ruling on the suppression motion.'
The motion judge was not incorrect in finding that the defendant had acquiesced to both of these delays and the time therefore should not be chargeable to the Commonwealth. The Supreme Judicial Court has 'specifically emphasized the obligation of defense counsel to object to delay.' Commonwealth v. Lauria, 411 Mass. at 68, citing Barry v. Commonwealth, 390 Mass. at 296 n.13. Additionally, '[w]hen a defendant has agreed to a continuance, or has not entered an objection to delay, he will be held to have acquiesced in the delay.' Barry v. Commonwealth, supra at 298. Here, the defendant acquiesced to each time delay by failing to make a timely objection on the record and the delays therefore are excluded from rule 36 calculations.
February 7, 2007 -- May 9, 2007. Finally, the defendant claims that the period from February 7, 2007, to May 9, 2007, should have been included in the calculations. After the pretrial conference on February 7, 2007, there was a series of compliance and election dates whereby the Commonwealth failed to provide the requested discovery documents for a period of ninety-one days. The defendant did not challenge this delay, and only now raises the issue on appeal. Below, defense counsel admittedly excluded the period, stating, 'I felt that, you know, you have to give the Commonwealth a reasonable period of time. You know, certainly, I acquiesced to -- to a delay to wait for the documents.' Because the defendant not only acquiesced to the delay by not objecting, but actually expressly excluded this time period from his calculations, the issue is waived. See Commonwealth v. Lauria, 411 Mass. at 68.
Judge: 'So, that's the period -- I'm just looking at your -- from February 7th --'
Defense counsel: 'February 7th to March 28th'
Judge: 'to March 28th.'
Defense counsel: 'I exclude.'
Judge: 'And then, from March 28th to May 9th?'
Defense counsel: 'I exclude that also.'
Judge: 'Okay.'
We therefore conclude that the motion judge properly denied the defendant's motion to dismiss for failure to grant him a speedy trial under rule 36 because the defendant was tried within the twelve-month time limit.
Constitutional claims. We also have reviewed the defendant's State and Federal constitutional claims and find them to be without merit. The defendant argues that he unfairly was prejudiced because one of his witnesses, Jason Sargeant, became unavailable during the delay. However, '[t]he burden is on the defendant to demonstrate prejudicial delay sufficient to warrant dismissal.' Commonwealth v. Dixon, 458 Mass. 446, 459 n.24 (2010), citing Commonwealth v. Gove, 366 Mass. 351, 361 (1974). Here, Sargeant only would have provided cumulative testimony on substantially the same topic as other defense witnesses. As such, the defendant was not impaired by the unavailability of Sargeant.
Length of the delay, cause of the delay, the defendant's assertion of his right, and prejudice to the defendant are the four factors required in the balancing test to determine whether the delay violated the defendant's constitutional rights under Barker v. Wingo, 407 U.S. 514, 530 (1972).
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Judgments affirmed.
By the Court (Rapoza, C.J., Grasso & Kantrowitz, JJ.),