378 Mass. 19 | Mass. | 1979
Eighteen months following indictment of the defendant on charges of breaking and entering, larceny and assault, a judge of the Superior Court granted the defendant’s motion to dismiss the indictment for lack of a speedy trial. Among the judge’s reasons was the Commonwealth’s failure to place the case on the January,
The record reveals the following. On July 3, 1976, the defendant was arrested, arraigned and, after bail was set, committed to the Charles Street jail by a judge of the District Court. Some two weeks later, the District Court judge found probable cause and bound the defendant over for trial in Superior Court. On the petition of a psychiatrist at the jail, who stated that the defendant was "not psychologically able to await trial in a penal environment,” the defendant was transferred to Bridgewater State Hospital on July 23,1976, where he remained until his motion to dismiss was granted on February 17, 1978.
The defendant was indicted on August 9, 1976, and arraigned in the Superior Court on September 27, 1976, at which time counsel was appointed and a prior default removed. At a pretrial conference on October 25, 1976, his counsel agreed to the Commonwealth’s suggested trial date of January 4, 1977. The case, however, did not appear on the trial list for that day. On January 14, a Superior Court judge granted the defendant’s motion for a psychiatric examination to determine criminal responsibility at the time of the crime and also ordered an examination on competency to stand trial. The judge scheduled a hearing on the psychiatric report for February 2,1977. Because of delays at Bridgewater in preparation of the report, the case was continued several times, apparently by agreement, until the report was filed in August, 1977. Colloquy at a status hearing in March, 1977, indicates that the defendant had consented in writing to remain at Bridgewater pending trial. On September 9, 1977, defense counsel and the Commonwealth agreed to seek a trial date of November 8, 1977.
The case appeared on the November list and was sent to the judge’s session. On November 28, the judge granted
The case did not appear on the list for January 10,1978. The defendant renewed his motion to dismiss on January 11, and marked it for a hearing on January 20. The case was called that day in the first criminal session, and was assigned to a trial session. When it appeared that the assigned session was full, defense counsel returned to the first criminal session to seek another session, with no success. It appears from an affidavit that most trial sessions were crowded throughout the month, although several openings did exist. Severe snowstorms and continuing congestion in the trial calendar further delayed the case until February 17, when the judge granted the defendant’s motion to dismiss the indictment. He gave as reasons the failure of the Commonwealth to place the case on the January, 1978, trial list "and other reasons.”
Barker v. Wingo, 407 U.S. 514, 530 (1972), identifies four factors to be assessed in determining whether a defendant has been denied his right to a speedy trial: "Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” See also Commonwealth v. Beckett, 373 Mass. 329, 332 (1977); Commonwealth v. Dabrieo, 370 Mass. 728, 735-739 (1976); Commonwealth v. Boyd, 367 Mass. 169,
Unavailability of key prosecution witnesses and court congestion contributed heavily to this delay. Normally the unavailability of key witnesses due to circumstances beyond the Commonwealth’s control is sufficient excuse for any ensuing delay and will not be weighed against the Commonwealth in considering the matter of excessive delay. Barker v. Wingo, supra at 531. Commonwealth v. Daggett, 369 Mass. 790, 794 (1976). See ABA Standards Relating to Speedy Trial § 2.3 (d) (i) (1974); Mass. R. Crim. P. 36 (b) (2)(B) (effective July 1,1979). Similarly, delay due to court congestion, although to be charged against the Commonwealth, should be weighed less heavily than would be a deliberate effort to stall the trial. Barker v. Wingo, supra at 531. Commonwealth v. Beckett, 373 Mass. 329, 332 (1977), and cases cited. But see Commonwealth v. Rego, 360 Mass. 385, 392 (1971); ABA Standards, supra, § 2.3 (b). However, delays that would be excused or considered negligible in the ordinary case may amount to excessive delay when the defendant’s right to a speedy trial is made specific by court order.
In the instant case, the defendant had already been incarcerated for sixteen months when the judge granted the motion for a speedy trial. In the face of the judge’s order that the case be tried on January 10 with no further continuances, the Commonwealth failed to place the case on the January list. See G. L. c. 278, § 1; Commonwealth
Order dismissing indictment affirmed.