This case presents the central questions for purposes of a defendant’s right to a speedy trial under the Sixth Amendment to the United States Constitution or art. 11 of the Massachusetts Declaration of Rights: (1) when the speedy trial clock starts, and (2) whether the speedy trial clock “resumes” or “resets” when, after the right to a speedy trial attached, the Commonwealth dismisses charges and then reinstates the charges at a later date. We conclude, pursuant to art. 11 of the Massachusetts Declaration of Rights, that (1) the speedy trial clock starts when a Massachusetts criminal complaint issues, and (2) the speedy trial clock “resumes” when the Commonwealth reinstates charges following dismissal.
After the Appeals Court concluded that the delay in bringing the defendant to trial did not violate Mass. R. Crim. R 36,
1. Facts. We summarize the relevant facts as found by the motion judge, supplemented by uncontested facts set forth in Butler I, supra at 659-661.
On September 16, 1991, a criminal complaint and an arrest warrant issued from the Chelsea Division of the District Court Department against the defendant for rape in violation of G. L. c. 265, § 22 {b), and unarmed burglary in violation of G. L. c. 266, § 15, both alleged to have occurred three days earlier. On May 21, 1992, a warrant for the defendant’s arrest for these crimes was lodged at the correctional institution where the defendant was serving a sentence on unrelated charges. It appears from the docket that court personnel in the District Court failed to enter details concerning the warrant in the warrant management system as required by G. L. c. 276, § 23A. In January, 1993, while still incarcerated on the unrelated charges, the defendant signed a form requesting a speedy trial on the 1991 complaint. Although the District Court received the defendant’s request, the form was not docketed and no action was taken on the request. A department of correction “summary/key issues” report dated April 14, 1993, stated that rape and burglary charges against the defendant were outstanding; however, subsequent “summary/key issues” reports issued between 1994 and 1997, which the defendant signed, stated that the defendant had “no outstanding legal issues.”
The defendant completed his sentence on the unrelated charges and was released on June 21, 1997. Three days later, a second warrant for his arrest issued on the rape and burglary charges. The defendant was arrested and arraigned in District Court on the 1991 complaint on March 11, 1998. On April 10, 1998, however, the charges against him were dismissed without prejudice because the Commonwealth was unable to locate the rape victim.
The Commonwealth subsequently renewed contact with the victim and, on March 23, 1999, nearly one year following the dismissal of the charges, obtained aggravated rape and unarmed burglary indictments against the defendant. The defendant was arraigned in Superior Court on May 6, 1999. The defendant’s trial began on May 5, 2003, where the issue was not whether
2. Standard of review. Counsel’s performance is ineffective if it falls “measurably below that which might be expected from an ordinary fallible lawyer,” and “likely deprived the defendant of an otherwise available, substantial ground of defence.” Commonwealth v. Saferian,
3. Speedy trial analysis.
Although the considerable delay leaves no doubt that a Barker inquiry is warranted, we take this opportunity to consider the precise length of delay in the present case. Thus, we address (1) when the defendant’s speedy trial right attached, and (2) whether the time prior to the April, 1998, dismissal counts against the Commonwealth, to bring clarity to ambiguous points of law.
i. Attachment. It is well-established that indictment or arrest starts the speedy trial clock. See United States v. Marion,
We conclude that a defendant’s right to a speedy trial, at least under art. 11, attaches when a criminal complaint issues. Therefore, arrest, indictment, or a criminal complaint issued pursuant to Massachusetts law, whichever comes first, will start the speedy trial clock. Any cases to the contrary are no longer good law. See, e.g., Commonwealth v. Gove, supra. The constitutional right to a speedy trial attaches because the subject of a criminal complaint is undoubtedly an “accused,” and is not merely in “the preaccusation period when a police investigation is ongoing.” Commonwealth v. Gove, supra at 357, citing Commonwealth v. Jones,
ii. Resume versus reset. The question whether the speedy trial clock “resumes or resets” arises in the context of formal charges that are brought, dismissed, and brought again. The issue is whether the time between an initial charge and dismissal (“resume,” or “tolling” theory), or only the time following a reinstated, formal charge (“reset” theory), should count against the Commonwealth for purposes of a defendant’s constitutional right to a speedy trial.
For these reasons, we conclude that the period of more than six and one-half years between the issuance of the criminal complaint and the dismissal of charges (September 16, 1991, to April 10, 1998), and the period of more than four years between the indictment and trial (March 23, 1999, to May 5, 2003) count against the government for the purposes of the defendant’s constitutional right to a speedy trial. A total delay of over ten years is undoubtedly “presumptively prejudicial.” See Dog-gett, supra at 652 n.l.
b. Analysis under Barker. We turn to the test set forth in
i. Length of the delay. Length of delay “is actually a double enquiry.” Doggett, supra at 651. It first bears on whether a speedy trial analysis is triggered, and is again considered to “the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the [speedy trial] claim.” Id. at 651-652. We need not tarry here, as a ten-year delay, as the Commonwealth concedes, clearly weighs heavily against the Commonwealth.
ii. Reasons for delay. The Commonwealth has said that its own negligence caused seven and one-half years of delay.
iii. Defendant’s assertions of his right to a speedy trial. It is undisputed that the defendant signed a form requesting a speedy trial on the present charges in January, 1993, while he was incarcerated on unrelated charges. Although we do not, in the defendant’s words, “insist[] that a defendant must storm the [c]ourthouse and batter down the doors to preserve his right to a speedy trial,” we do require more than the defendant’s soft assertion of his right to a speedy trial. We agree with the Appeals Court in Butler I, supra at 664, “that the defendant must bear some of the responsibility because he failed to make any inquiry regarding the status of his request for a speedy trial.”
iv. Prejudice to the defendant. Although the right to a speedy trial is “not primarily intended to prevent prejudice to the defense caused by passage of time,” MacDonald, supra at 8, there remains a concern that unreasonable delay between formal accusation and trial carries the “possibility that the defense will be impaired . . . [which] skews the fairness of the entire system.”
Here, the defendant makes only general claims that his ability to defend himself was impaired based on some missing evidence, the unavailability of unspecified witnesses, and the dimming of several witnesses’ memories. The Commonwealth has conceded that the loss of cushions from the couch where intercourse occurred, photographs of the door the defendant allegedly kicked in, and the written pages of the rape kit used by the hospital where the victim received treatment following the incident with the defendant have been lost due its negligence.
Where the defendant conceded intercourse (and his admission is corroborated by DNA evidence), the loss of these items (with the possible exception of the photographs) can hardly be seen as prejudicial. Moreover, the Commonwealth has established that “nothing in the record before us . . . suggests that the delay in bringing the defendant to trial precluded him from advancing his best defense.” Butler I, supra at 667. The percipient witnesses to the rape (the defendant and the victim) were available and testified at trial; the potential significance to the defense of the testimony of the unspecified witnesses is unknown. See Commonwealth v. Look, supra at 901. Similarly, it is unclear how the loss of the couch cushions impaired the defense, and the acquittal on the burglary charge and conviction of the lesser included offense of rape (as opposed to aggravated rape) suggests that the loss of the photographs of the door actually inured to the defendant’s benefit. That the victim was unable to remember some details of the rape was offset by her ability to recall several statements the defendant made during intercourse that went to the crucial issue of consent. See Loud Hawk, supra; Commonwealth v. Gove,
Moreover, there is nothing in the record to suggest that the defendant suffered a substantial deprivation of liberty on account of the issuance of the criminal complaint, particularly in the first period of six and one-half years, much of which he spent incarcerated on other charges. The record indicates that the defendant was not incarcerated on the 1991 complaint at any point during the delay prior to his trial, and was only subject to bail for one month (March 11, 1998, to April 10, 1998). Moreover, although the lodging of a warrant on a criminal complaint for a person incarcerated at a prison or correctional facility may result in decreased freedom even within the confines of the prison or correctional facility, there is nothing to suggest that such was the case here. See, e.g., Smith v. Hooey,
4. Conclusion. In sum, although the delay from the attachment of the right to a speedy trial in September, 1991, to his trial in May, 2003 (excluding the period during which charges were dismissed), was lengthy, the Barker factors, applied in their totality, do not establish that the defendant’s constitutional right to a speedy trial was violated. Therefore, because the decision not to advance a losing argument does not fall “measurably below that which might be expected from an ordinary fallible lawyer,” and because the defendant was not “deprived of an otherwise available, substantial ground of defence” by virtue of his counsel’s decision not to advance a constitutional speedy trial argument on direct appeal, we conclude that the defendant
So ordered.
Notes
The defendant has been represented by different counsel at various stages of his proceeding. He challenges the conduct only of the attorney who represented him on the direct appeal that resulted in the decision in Commonwealth v. Butler,
Trial counsel asserted violation of the defendant’s constitutional speedy trial right in a pretrial motion to dismiss.
The defendant does not challenge determinations that his claims of delay under Mass. R. Crim. R 36,
The appellate attorney whose conduct the defendant challenges filed an affidavit in support of the defendant’s motion for a new trial. In the affidavit, he explained that he read the cases of United States v. Loud Hawk,
Although we ultimately decide this case pursuant to art. 11 of the Massachusetts Declaration of Rights, we cite Federal cases that interpret the Sixth Amendment to the United States Constitution because the analysis is analogous. See Commonwealth v. Look,
Compare, e.g., United States v. Boskic,
Nothing we say here should be interpreted as having any bearing on a defendant’s constitutional right to counsel. See United States v. Boskic, supra at 84 n.16 (noting that, because of the different interests at stake, the “Supreme Court has explicitly rejected that link between the Sixth Amendment’s right to counsel and the right it provides to a speedy trial”). See also K.B. Smith, Criminal Practice and Procedure § 19.8 (3d ed. Supp. 2012), citing Commonwealth v. Beland,
A formal, criminal complaint issued by a trial court should not be confused with an application for a criminal complaint, which may be filed by any person (including police officers and civilians) with knowledge of facts that constitute a chargeable offense. See Mass. R. Crim. R 3 (a), (g) (1). A Massachusetts trial court will only issue a criminal complaint where there are sufficient facts to establish that a crime has been committed. See Mass. R. Crim. P. 3 (g) (2) (complaint to issue on probable cause). See also G. L. c. 218, § 35; Dist./Mun. Cts. R. Crim. R 2 (b).
Starting the speedy trial clock when a trial court issues a criminal complaint furthers the purposes of the right to a speedy trial, even where the defendant is already incarcerated on unrelated charges. See Smith v. Hooey,
It is settled that dismissal of pending charges by the government, acting in good faith, “stops” the speedy trial clock. See, e.g., MacDonald, supra at 7; Burton, supra at 1008-1009. Thus, all parties to the present action agree that the nearly one year between the dismissal of the charges against the defendant (on April 10, 1998) and the defendant’s subsequent indictment on the same charges arising out of the same conduct (on March 23, 1999) does not count against the Commonwealth.
Our conclusion applies to reassertion of formal charges following dismissal of initial, formal charges that arise out of the same conduct, whether or not the charges are exactly the same.
We read MacDonald, Loud Hawk, and Burton differently from the judge who denied the defendant’s motion for a new trial. She “interpreted MacDonald and Loud Hawk to mean that once charges are dismissed in good faith, the relevant period of time for [speedy trial] purposes begins to run with the filing of a subsequent indictment and does not include the time during which the first charge was pending,” and then determined that this court “implicitly adopted” the “reset” theory in Burton, supra at 1009. The Appeals Court in Butler II, supra at 756, 759, similarly subscribed to the reset theory, and affirmed the order denying the defendant’s motion for a new trial.
In its additional opposition to the defendant’s pretrial motion to dismiss for lack of speedy trial, the Commonwealth stated that it was negligent in failing to arraign the defendant at a reasonable time after his arrest in November, 1991, on the unrelated charges. Thus, the Commonwealth conceded delay attributable to its own negligence beginning on January 1, 1992. In considering the Commonwealth’s concession on negligence, the Appeals Court in Butler I, supra at 663-664, said that it was “not convinced that the circumstances before [it] warrant[ed] that concession.”
Although the Appeals Court in Butler I, supra at 663-667, analyzed the defendant’s speedy trial claim pursuant to Mass. R. Crim. P. 36 (c), the analyses under the common-law rule and under the Federal and State Constitutions are sufficiently similar that the Appeals Court’s reasoning is instructive here. To establish a rule 36 (c) violation requires a showing of unreasonable delay on the part of the prosecution resulting in prejudice to the defendant. The Appeals Court in Butler I, supra, determined that the defendant failed to establish a rule 36 (c) violation because he bore some responsibility for failure to inquire into the status of his speedy trial request and because he failed to show prejudice.
Justice Thomas, dissenting in Doggett v. United States,
In fact, winnowing out weak arguments in favor of strong arguments is a virtue of appellate advocacy. See Commonwealth v. Sowell,