377 Mass. 356 | Mass. | 1979
The defendant was convicted on indictments charging assault with intent to murder (two counts), holding a correctional officer as hostage (two counts), and unlawfully carrying a weapon. He took an appeal to the Appeals Court, which affirmed the conviction.
General Laws c. 277, § 72A, as appearing in St. 1965, c. 343, "furnishes a ready method for inmates to accelerate action on possible further impediments to their freedom.” Commonwealth v. Gove, 366 Mass. 351, 355 (1974). See Commonwealth v. Fields, 371 Mass. 274, 278-281 (1976). It provides that penal authorities, on learning of an "untried indictment, information or complaint... pending in any court in the Commonwealth” against a prisoner in their custody,
According to § 72A, a prisoner who seeks to avail himself of its provisions shall submit the application “to the commissioner of correction, or such sheriff, master, keeper or penal institutions commissioner, who shall promptly forward it to such court by certified mail,” together with a certificate of that correctional official, which re
This case focuses on (1) whether the defendant, having actual knowledge of the indictments pending, complied with the particular procedure (set forth in § 72A), by which an application for prompt trial is made, and (2) whether, even if he failed to follow that explicit procedure, his acts were sufficient to warrant dismissal of the indictments by virtue of the protections provided by the statute.
The defendant contends that approximately eight and one-half months before he moved to dismiss the indictments under § 72 A, he mailed, and the Commissioner of Correction (Commissioner) received, a copy of a makeshift speedy trial application which he completed with reference to the named indictments. The judge who heard the motion to dismiss found otherwise. The judge determined that while the office of the Commissioner received an envelope from the defendant, that envelope did not contain any request for a speedy trial under the statute. Further, the judge found that the defendant informed neither the head administrative clerk nor the superintendent at M.C.I. Walpole (the facility at which the defendant was incarcerated during the pertinent period) of the fact that he had fashioned his own § 72A form and was moving for a speedy trial under G. L. c. 277, § 72A. We accept, as we must, the judge’s resolution of the conflicting testimony, and will not disturb the judge’s subsidiary findings if they are warranted by the evidence. Commonwealth v. Cruz, 373 Mass. 676, 682 n.2 (1977). Commonwealth v. Mahnke, 368 Mass. 662, 666-667 (1975), cert. denied, 425 U.S. 959 (1976). The record includes sufficient evidence to support the judge’s findings. Thus, we conclude that the defendant did not follow the procedures prescribed by § 72A for applying for prompt disposition of the charges pending against him.
To support his argument the defendant relies on Commonwealth v. Alexander, 4 Mass. App. Ct. 212 (1976), aff'd on other grounds, 371 Mass. 726 (1977), in which Alexander’s pro se motion for speedy trial was treated as if it were an application under § 72A. While Alexander holds that a defendant need not comply with the precise procedural requisites set forth in § 72A in order to be afforded its protection,
The circumstances which triggered the operation of § 72A in Alexander are noticeably absent from the instant case. First, although the defendant was notified of neither the outstanding indictments against him nor of his § 72A speedy trial rights by the head administrative clerk at M.C.I. Walpole, the judge’s findings, substantiated by testimony in the record, indicate that he was actually aware of both the indictments and his rights under § 72A. Indeed, he had copied the form for the § 72A application he submitted to the clerk from one he had in his possession, and filled in the relevant indictments.
Further, the judge found the defendant did not inform the district attorney for the Norfolk district that he was moving for a speedy trial under c. 277, § 72A, and the district attorney had no actual knowledge that an application had been made. Notice to the district attorney of the filing of a speedy trial motion or application is an essential aspect of § 72A. When a prisoner submits his application according to the procedures set forth in § 72A, the appropriate correctional official is charged with the responsibility of notifying the district attorney
The "burden” which falls on the Commonwealth in such a circumstance, is a burden at present placed by the statute on the district attorney. It is the district attorney who has the initial responsibility to set up the trial lists, G. L. c. 278, § 1, and to bring cases to the court for "trial or other disposition” of the indictment as required by G. L. c. 277, § 72A. Cf. Mass. R. Crim. P. 36 (effective July 1, 1979). The requirement of § 72A that correctional officials notify the district attorney reflects the awareness of the Legislature of the duty placed on district attorneys under G. L. c. 278, § 1.
The defendant argues in his brief that once he had sent his self-prepared application to the court "in an attempt
We hold, therefore, that in the circumstances of this case, receipt of the defendant’s § 72A application by the clerk was insufficient to trigger the protections afforded by the statute. Where a prisoner, such as the defendant, is familiar with the § 72A procedure, fails to comply with it, declines to seek his attorney’s assistance, and neglects in any manner to inform the Commissioner or the district attorney of his desire for prompt disposition of the pending charges, in the absence of actual knowledge by the district attorney, that prisoner cannot reasonably expect to enjoy the protections provided under § 72A.
Rejecting a "mechanistic approach” to the language of the provision, we have held that § 72A "does not mandate a per se rule of dismissal after the statutory period has expired.” Commonwealth v. Alexander, 371 Mass. at 728. We have previously remarked that "[a] defendant who is
Judgments of the
Superior Court affirmed.
Commonwealth v. Royce, 6 Mass. App. Ct. 870 (1978).
The defendant does not contend that he was deprived of his constitutional right to a speedy trial guaranteed by art. 11 of our Declaration of Rights and the Sixth Amendment to the Constitution of the United States, applicable to the States under the Fourteenth Amendment. Commonwealth v. Chase, 348 Mass. 100 (1964). Commonwealth v. Hanley, 337 Mass. 384, cert. denied, 358 U.S. 850 (1958). Barker v. Wingo, 407 U.S. 514 (1972). We therefore do not address this question.
The statute does not create a mechanism whereby penal authorities are informed of these untried charges. A defendant, however, has
The filing of a bench warrant would be notice to the correctional official and trigger his duty to advise a prisoner of his rights under c. 277, § 72A. Commonwealth v. Needel, supra. In this case, the defendant was arraigned on the indictments in question on June 18, 1975, and seven days later, he wrote to Marvin Fox, the head administrative clerk at the Massachusetts Correctional Institution at Walpole (M.C.I. Walpole) (the person charged with the duty of processing § 72A applications) and requested information concerning any outstanding indictments pending against him in Massachusetts. The following day, Fox responded by letter that he had no such information. The defendant here was not prejudiced by Fox’s uninformative reply, since he had already been notified of the indictments against him at the arraignment. He also had been advised of his rights under § 72A by appointed counsel and could have sought further assistance from his counsel had he so desired. Cf. Commonwealth v. Parry, 1 Mass. App. Ct. 730, 734-735 (1974). See also Commonwealth v. Campbell, 5 Mass. App. Ct. 571, 575 (1977). The better practice, consistent with the spirit of § 72A, would be for the court in which the charges are lodged to notify the appropriate correctional official, as expeditiously as possible, of all untried indictments or complaints against any prisoner serving a term of imprisonment in any correctional facility under that official’s supervision.
The record reflects that the application for prompt trial on each of the indictments was docketed on July 25, 1975. The application, however, was not completed properly in that it had not been completed and signed by the Commissioner as provided by § 72A.
In Alexander the Appeals Court attached no significance to the failure of the Commissioner to complete and sign the certificate on the application dealing with the penal status of the defendant. Commonwealth v. Alexander, 4 Mass. App. Ct. 212, 214 n.3 (1976). We joined in that aspect of the decision in our further review of Alexander. Commonwealth v. Alexander, 371 Mass. 726, 727 n.3. The failure of the defendant here to obtain the Commissioner’s completion of the certificate on the form filed with the Superior Court is also of no consequence in our view of this case.
We made clear in Commonwealth v. Alexander, 371 Mass. 726, 729 (1977), that even where "the defendant has neither caused the delay nor benefited from it, the statute does not inexorably render indictments ineffective after six months.” We found the indictments appropriately dismissed in that case because the Commonwealth was unable to come forward with any justification for its eleven-month delay.
The defendant claims that he asked for a speedy trial application from Fox, but this request was denied, and as a result proceeded with the motion pro se. The findings of the judge support the conclusion that Fox declined to forward the application because he had no information as to any outstanding indictments pending against the defendant. The judge found that the defendant could have provided Fox with this information, and also that he could have contacted his attorney for assistance during the relevant period. He chose to do neither. As a result, the judge determined that "the defendant’s actions in preparing his pro se § 72A application and failure to tell Mr. Fox of the new indictments were responsible for the failure of the Corrections Department to notify and process a § 72A form and application.” The defendant’s failure to advise Fox of the indictments of which the defendant was aware, and the fact that Fox had no such knowledge, is sufficient to relieve the Commissioner of the duty to advise either the court or the district attorney of the defendant’s application. Additionally, of course, the judge found that the Commissioner never received a copy of the application filed by the defendant.