Commonwealth v. UnderwoodCommonwealth v. Underwood
- Reporters:
- , ,
- Before:
- Rose
The defendant was convicted on three indictments for armed robbery in a trial held subject to
1. First, the defendant contends that he was denied his right to a speedy trial, in violation of the statutory mandate of
The chronology of events material to this issue is as follows. The robberies occurred on November 14, 1971. The defendant was named in three complaints issued by a District Court on November 30,1971. At that time the defendant was a fugitive from justice, but he was returned to M. C. I., Walpole, on May 10, 1972.
1
Arrest warrants were lodged at Walpole on November 2, 1972. On December 11,
A. We first consider the defendant’s claim that the Commonwealth failed to comply with the requirements of
Accordingly, we focus initially on the question whether the complaints issued by the District Court were disposed of in accordance with
The defendant also directs our attention to the two-month delay between the signing of his application by the Commissioner of Correction on December 13, 1972, and the receipt of the application by the District Court on February 13, 1973. No explanation for the delay appears in the record before us. We see no reason to deviate from the statutory period of six months from
receipt
in the absence of a showing of purposeful delay on the part of the
Alternatively, if the defendant’s application or his motion before the Superior Court to dismiss for failure to grant a speedy trial pursuant to
The defendant’s claim of a violation of
B. In addition to the claim of violation of the statutory right provided by
Complaints on all three charges were issued by the District Court on November 30, 1971. The defendant thereby
Under the test devised in Barker v. Wingo, four factors are employed in a “difficult and sensitive balancing process” to determine whether the constitutional mandate of a speedy trial has been complied with. 407 U. S. at 530-533. Commonwealth v. Gove, supra, at 361. The factors are the “[ljength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. quoting Barker v. Wingo, supra, at 530. The factors are accorded equal weight, with “[t]he burden on the defendant to demonstrate prejudicial delay sufficient to warrant dismissal.” Commonwealth v. Gove, supra, at 361; and cases cited.
The threshold inquiry is whether the delay was of sufficient length to trigger an examination of the other factors. Commonwealth v. Gilbert, 366 Mass. 18, 21 (1974). Commonwealth v. Dominico, 1 Mass. App. Ct. 693, 701 (1974). A twenty-six and a half month delay clearly merits close scrutiny of the defendant’s speedy trial claim. See Commonwealth v. Gove, supra, at 362, n. 13. Compare Commonwealth v. Gilbert, supra (31 months); Commonwealth v. Dominico, supra (19 months).
The next factor of the Barker balancing test that we consider is whether the defendant has asserted his right to a speedy trial. Unquestionably, the defendant consistently and energetically pressed his interest on this point. This, in itself, is not enough, however.
In considering the reasons for the delay, we note initially that significant portions of this time are attributable to the defendant. At the time the complaints were issued the defendant had been a fugitive from justice for a period of approximately five and a half months. He apparently remained so until returned to M. C. I., Walpole, on May 10,
An examination of the period from May 10, 1972, when the defendant was serving sentences at M. C. I., Walpole, for unrelated offenses, and November 2, 1972, when the warrants were lodged at the prison likewise does not presumptively indicate delay attributable to the Commonwealth. The defendant cannot expect his whereabouts to be quickly ascertained when he has been a fugitive from justice for over five months after the complaints were issued. Further, as in Commonwealth v. Gove, supra, at 363, where the defendant’s motion to dismiss and the resulting hearing “undoubtedly ... set back the trial date,” here the defendant’s motion to dismiss on July 31, 1973, and his resulting appeal also were responsible for considerable delay.
Thus, the defendant is responsible for a considerable period of delay occurring toward the end of the twenty-six and a half month time span under scrutiny. From the moment the defendant filed his pro se petition for interlocutory relief on September 14, 1973, in the Supreme Judicial Court, all movement toward the commencement of his trial was stopped due to the pendency of the petition at the appellate level. Indeed, the motion judge at the November 12, 1973, hearing indicated that it would be unwise to proceed with a trial which could be rendered a nullity if the pro se petition should be allowed. We are in agreement with that assessment of the situation.
5
Adding to this delay, both the
There is little if any explanation in the record for the remaining delay, the period between November 2,1972, and June 20, 1973. However, “[ajbsent a demonstration of culpability on the-part of the Commonwealth in delaying trial, ‘the burden ... [isjon the defendant to show that the government unreasonably caused a prejudicial delay.’ ” Commonwealth v. Jackson, ante, 511, 517 (1975), quoting Commonwealth v. Gilbert, supra, at 22. We hold that this burden has not been sustained by the defendant. However deplorable the delays in notifying the defendant of the charges and in arraigning him, there is no showing of a calculated effort on the part of the Commonwealth to prejudice the defendant. Cf. United States v. Brown, 495 F. 2d 593, 600 (1st Cir. 1974), cert. den. 419 U. S. 965 (1974) ; Barker v. Wingo, 407 U. S. at 531.
Delay must be proportional in part to the complexity of the case. See
Barker
v.
Wingo,
407 U. S. at 531;
Commonwealth
v.
Dominico, supra,
at 701. The transcript of the trial reveals that these were not complex crimes or ones involving complicated investigation and preparation on the part of the prosecution. Nevertheless, although the prosecution of a crime may be relatively straightforward, when that crime is a felony certain procedural steps (designed largely for the benefit of a defendant) are necessitated by our system of criminal jurisprudence, and “orderly criminal
In the circumstances of this case, as in Commonwealth v. Gove, the defendant has not established either a lack of due diligence by the Commonwealth or deliberate efforts by the Commonwealth to postpone trial. Clearly, the defendant was responsible for much of the delay and he has failed to sustain the burden of showing that the Commonwealth intentionally or unreasonably caused the balance of the delay.
Finally, we turn to the question whether the defendant was prejudiced by the delay in bringing his case to trial. While lack of a showing of prejudice to a defendant is not in itself sufficient to deny a speedy trial claim (Moore v. Arizona, 414 U. S. 25 [1973]; Commonwealth v. Green, 353 Mass. 687, 690 [1968]), nevertheless, it is an important factor to be considered.
The defendant argues that he was prejudiced in his ability to defend himself because two witnesses who could provide alibi evidence had died in the interval prior to trial. (A third alibi witness did testify at trial.) Neither at the November 12, 1973, hearing on the defendant’s motion to dismiss (filed October 24, 1973) nor at the time of the renewal of that motion just prior to trial did the defendant introduce, or attempt to introduce, any evidence to that
In light of the defendant’s responsibility for a sizeable portion of the delay, his failure to show lack of due diligence or intentional efforts to delay trial on the part of the Commonwealth, and his failure to substantiate a showing of prejudice as a result of the delay, we conclude that the de
2. Next, the defendant assigns as error the denial of his motion to suppress an out-of-court identification made by one of the victims of the robbery from the showing of a single photograph and the anticipated (and subsequently admitted) in-court identification by her; the latter on the ground that it was tainted by the challenged out-of-court identification.
The trial judge made no findings of fact in relation to his denial of the motion to suppress. While a preference for such a judicial record of facts found in a pretrial suppression hearing has been expressed on numerous occasions (Commonwealth v. Cook, 351 Mass. 231, 234 [1966], cert. den. 385 U. S. 981 [1966]; Commonwealth v. Murphy, 362 Mass. at 544, 546-547; Commonwealth v. Forrester, 365 Mass. 37, 44-45 [1974]; Commonwealth v. Henley, 1 Mass. App. Ct. 564, 567 [1973]), the fact that all the evidence at the pre-trial suppression hearing, introduced through a single witness, was uncontradicted 9 permits us to review the judge’s ruling on the motion without the necessity of remanding the case for the purpose of making such findings. See Commonwealth v. Flaherty, 1 Mass. App. Ct. 282, 287 (1973). Cf. Commonwealth v. Forrester, supra.
The victim, who made the contested out-of-court photographic identification, testified at the pre-trial suppression hearing that the robbery took about five to seven minutes, that the defendant held a gun aimed at her, that she had an opportunity to observe the defendant, that she
The Commonwealth did not introduce at trial testimony concerning the claimed suggestive photographic identification. 10 Contrast Commonwealth v. Kudish, 362 Mass. 627, 630-631 (1972). Therefore, the judge’s denial of the motion to suppress it, if error, was most certainly harmless. Consequently, we limit our review of the judge’s ruling solely to the question whether the in-court identification was properly admitted in evidence.
“ [C] onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”
Simmons
v.
United States,
390 U. S. 377, 384 (1968) ;
Commonwealth
v.
Murphy,
362 Mass. at 544. As soon as it becomes apparent that the out-of-court identification may have been affected by constitutional error, the burden of proof shifts to the Commonwealth to establish by clear and convincing evidence that there is an independent basis for a subsequent in-court identification by the witness.
United States
v.
Wade,
388 U. S. 218, 240 (1967).
Commonwealth
v.
Flaherty,
1 Mass. App. Ct. at 287. But the defendant has the initial burden of showing possible illegality. Except for the fact that the defendant was identified
Even if we were to assume that the out-of-court photographic identification procedure was impermissibly suggestive, that fact “does not as a matter of law preclude the same witness from making a valid in-court identification.” Commonwealth v. Flaherty, supra, at 286, citing United States v. Wade, supra, at 240. Commonwealth v. Cooper, 356 Mass. 74, 84. “The test to be applied in this situation is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Commonwealth v. Flaherty, supra, quoting United States v. Wade, supra, at 241 and Wong Sun v. United States, 371 U. S. 471, 488 (1963).
Applying the standards formulated by the United States Supreme Court in
United States
v.
Wade, supra,
at 241 (see also
Stovall
v.
Denno,
388 U. S. 293 [1967];
Simmons
v.
United States,
390 U. S. 377 [1968]), and repeated in this jurisdiction on numerous occasions (see
Commonwealth
v.
McGrath,
361 Mass. 431, 438;
Commonwealth
v.
Flaherty, supra),
we rule that the uncontradicted testimony of the only witness called at the suppression hearing established by clear and convincing evidence that her in-court identification would have an independent source. The witness had ample opportunity to observe the defendant at the time of the crime (generally considered the most important of the factors set out in the
Wade
case; see
Commonwealth
v.
Kennedy, ante,
218, 221, n. 4 [1975], and cases cited), over a period of several minutes, from close proximity, under fairly good lighting.
11
In addition, the observa
3. The last of the defendant’s assigned errors that we consider is the denial of his challenge to the array of traverse jurors. 12 The challenge to the array is premised on the alleged exclusion of the following groups: (1) persons under the age of twenty-five, (2) persons on welfare, (3) women with children under a certain age and (4) persons over the age of sixty-five. The defendant argues that the exclusion of these groups resulted in a violation of his right under the Sixth Amendment (by way of the Fourteenth) and art. 12 of the Declaration of Rights to be tried before a petit jury selected from a representative cross section of the community. See Taylor v. Louisiana, 419 U. S. 522, 526-533 (1975); Commonwealth v. Beneficial Fin. Co. 360 Mass. 188, 214-15 (1971), cert. den. sub nom. Farrell v. Massachusetts, 407 U. S. 910 (1972), and sub nom. Beneficial Fin. Co. v. Massachusetts, 407 U. S. 914 (1972).
On a challenge to the jury array, the defendant has the burden of proving as a matter of fact that a distinct and
Whether the exclusion of those four groups would violate the Fourteenth Amendment need not be considered, because the defendant has failed to sustain his burden of proving as a matter of fact that any such exclusion was intentional. See generally Hernandez v. Texas, supra, at 479; Commonwealth v. Stone, supra. But see King v. United States, 346 F. 2d 123 (1st Cir. 1965); Commonwealth v. Slaney, 350 Mass. 400, 402 (1966); Commonwealth v. Beneficial Fin. Co., supra, at 212.
The only evidence
13
introduced by the defendant which is properly before us is a number of monographs published by the Massachusetts Department of Commerce and Development containing data on the population (broken down by age and sex categories) of most of the cities and towns in Essex County. See
Amory
v.
Commonwealth,
321 Mass. 240, 250-253 (1947). After the jury was empanelled the defendant did make two motions
14
aimed at securing witnesses and records for the purpose of substantiating his
Judgments affirmed.
Notes
The defendant’s counsel stated this fact in her argument at the November 12,1973, hearing on the motion to dismiss.
The petition was transferred to this court on December 11, 1973, pursuant to
The defendant is not deprived of these guarantees because of his status as a prison inmate convicted of another offense. Smith v. Hooey, 393 U. S. 374 (1969); Commonwealth v. Gove, supra, at 357.
See note 1, supra.
We do not think we should attribute to the Commonwealth the three month delay from the time the pro se petition was filed in the Supreme Judicial Court, until the time when the petition was transferred to and decided by this court, as that period was apparently caused by the defendant’s failure to seek a hearing on the petition. The defendant’s further pursuit of relief in this court after December 21, 1973 (see n. 2), undoubtedly contributed to further delay in the commencement of his trial.
As part of the defendant’s second motion before this court seeking a reconsideration of the denial of his petition to file an interlocutory appeal from the denial of his October 24, 1973, motion to dismiss (see n. 2), the defendant requested this court to grant an evidentiary hearing in light of the claimed loss of witnesses. As the defendant had never sought to introduce such evidence in the Superior Court, it was not appropriate that he seek such relief before us at that time. The defendant made no attempt to introduce any such evidence in the Superior Court at the subsequent renewal of his motion to dismiss prior to the commencement of trial.
The defendant’s counsel may not have been aware of the fate of these alleged alibi witnesses at the time of the November 12, 1973, hearing, but such was not the case at the time she renewed the motion to dismiss just prior to trial.
At trial, a witness called by the defendant did testify that two individuals who were with the defendant on the night the crime was committed (at a location which would establish an alibi) had since died. Introduction of such evidence for consideration on the question of prejudice relating to the defendant’s loss of his right to a speedy trial was not appropriate at that stage of the proceedings. Rulings had already been made on the defendant’s motions to dismiss. The trial judge had no occasion to pass upon the credibility of this testimony at that late date. It is not appropriate for us to do so from a naked transcript on appeal. Cf. Commonwealth v. Flynn, 362 Mass. 455, 463 (1972); Commonwealth v. Murphy, 362 Mass. 542, 547 (1972); Commonwealth v. Fleurant, 2 Mass. App. Ct. 250, 254 (1974).
In reviewing the correctness of the trial judge’s denial of the defendant’s motion to suppress, we consider only that evidence introduced at the pre-trial hearing on that motion. See Commonwealth v. Roy, 2 Mass. App. Ct. 14, 18, fn. 1 (1974); Commonwealth v. Fleurant, 2 Mass. App. Ct. 250, 254 (1974). Evidence introduced at trial may vary from that before the judge at the suppression hearing. For instance, the victim testified at the probable cause hearing that she was unable to identify the defendant’s picture from the group of photographs shown to her shortly after the robbery. Evidence introduced at that time was relevant only to the credibility (as opposed to the admissibility) of the in-court identification.
Instead, it was introduced in evidence by the defendant on cross-examination, apparently for the purpose of undermining the credibility of the witness. Cf. Commonwealth v. Lombardo, 2 Mass. App. Ct. 387, 389 (1974).
Compare Commonwealth v. Ross, 361 Mass. 665, 675 (1972), judgment vacated 410 U. S. 901 (1973), affd. on rehearing 363 Mass. 665 (1973); Commonwealth v. Roberts, 362 Mass. 357 (1972); Commonwealth v. Flaherty, supra, at 287-288; Commonwealth v. Henley, 1 Mass. App. Ct. 564, 566 (1973); Commonwealth v. Kennedy, supra, at 221, n. 3, 222, n. 5. Contrast Commonwealth v. Teta, 358 Mass. 814 (1971); Commonwealth v. Sheridan, ante 50, 52 (1975).
The defendant first filed his challenge to the array prior to the commencement of trial. The challenge was renewed prior to completing the empanelling of the jury and again at the close of the Commonwealth’s presentation of its case. As will be pointed out, infra, only the first two challenges were timely.
Counsel for the defendant did not at any time point out to the court any statutory provisions which might have led to the alleged systematic exclusion of the four groups, nor did she argue any such point before this court. See e.g.,
The defendant made a “demand for process to summons witnesses pursuant to
At the time the defendant first argued his challenge to the array prior to the empanelling of the jury, counsel for the defendant did state she was prepared to file the above motions in order to bring in town clerks and welfare administrators as witnesses. However, counsel did not file those motions until after the commencement of trial, when it was too late. See Commonwealth v. Rodriquez, supra.
At the time the initial challenge was argued the judge stated: “If you have some evidence of systematic exclusion, whether it be documentary or you offer it by witness, I would hear it within some limitations .... If you wish to mark anything as an offer of proof I will entertain that.” The judge refused, however, to grant a hearing on the question of the challenge to the array. The defendant took an exception to the judge’s refusal to grant a hearing and argues that exception before us, but in light of the judge’s willingness to receive any evidence then available to the defendant and to allow the defendant to make an offer of proof, we perceive no error.
The only evidence introduced by the defendant was the monographs discussed above. Counsel did not make any offer of proof, as the judge had suggested, as to what she expected to prove through the witnesses she hoped to call.
The defendant here had ample opportunity to prepare his case, including the challenge to the array. See discussion in part 1, supra. Cf. Commonwealth v. Dirring, 354 Mass. 523, 530 (1968). In light of the defendant’s motions seeking dismissal because of the Commonwealth’s failure to grant him a speedy trial, the judge was understandably desirous of proceeding to trial.
The judge had the list of the venire marked for identification, and, despite its untimely presentation, we have inspected it. The only information contained on the list was the address, occupation and employer (or husband’s occupation) of the veniremen. The list does not specify age or marital status. The fact a venireman has a listed occupation is not conclusive proof that he is currently employed. Cf. Amory v. Commonwealth, 321 Mass. 240, 252-253 (1947).