The defendant appeals under G. L. c. 278, §§ 33A-33G, following convictions on indictments for rape, assault and battery by means of a dangerous weapon, and armed robbery (later reduced to larceny). The Appeals Court in dismissing the rape indictment held that the
The defendant contends (1) that all of the indictments flow from the same incident and therefore must meet the same six months’ standard under G.L. c. 277, § 72A, and (2) that, in any event, the Commonwealth has denied him his right to a speedy trial on these indictments, guaranteed by art. 11 of the Declaration of Rights of the Massachusetts Constitution and the Fourteenth Amendment to the United States Constitution. We disagree.
The incident from which all charges stem occurred in the early morning of August 8, 1969. A man broke into the apartment of the victim and removed money and a ring from her jewel box. At the time of the theft, she was asleep on the living room couch. The man awakened her, menaced her with a knife, and slapped her. He pushed her into the bedroom, and, as he did so, cut her neck slightly with his knife. In the bedroom, he attempted to have intercourse with her, but failed. After this unsuccessful attempt, she persuaded him to return her ring.
The two then emerged from the bedroom and sat down in the kitchen. The man delivered a long monologue about himself and his life. Subsequently, having finished his discourse, he ordered the victim to return to the bedroom and raped her.
Later on August 8, following a photographic identification by the victim, the Municipal Court of the Dorches-ter District issued a complaint which charged the defendant with the rape of the victim. No other charges were entered at that time in connection with the incident.
This second communication resulted in relatively swift action by the Commonwealth. On August 15, the defendant was brought before the District Court. He was arraigned on the rape complaint and was bound over to the grand jury. On September 16, 1971, the grand jury returned indictments for rape, assault and battery by means of a dangerous weapon, and armed robbery. All indictments were related to the events of August 8,1969. The defendant filed separate motions to dismiss the rape indictment (September 23, 1971) and the assault and battery and armed robbery indictments (September 29, 1971) for failure to grant him a speedy trial. After a Superior Court hearing at which the defendant testified, the motions were denied. The judge found, without specific reference to either the constitutional provisions or G. L. c. 277, § 72A, that the defendant had not been “actually prejudiced” by the delays in hearing his case.
On March 21,1972, a jury found the defendant guilty on each of the three indictments.
On appeal the Appeals Court dismissed the rape indictment, holding that the more than fifteen months’ interim between the defendant’s application for speedy trial and his arraignment in the District Court violated G. L. c. 277, § 72A. The Appeals Court declined to dismiss the remaining indictments on the ground that no complaint, indictment or information had been “pending” at the time of the defendant’s application. The Appeals Court ruled also that the defendant’s constitutional claims were without merit.
The statute on which the defendant relies, G. L. c. 277, § 72A, provides that penal authorities, upon learning of an “untried indictment, information or complaint... pending in any court in the commonwealth” against a prisoner in their custody, must advise the prisoner in writing of these untried charges. The prisoner may then make application in writing “for prompt trial or other disposition” of these charges. Under the statute, trial or other disposition “shall” occur within six months of receipt of the application by the court.
The defendant argues that the six months’ period, which began with his April 27, 1970, application for prompt trial of the rape charge, must also define the time period available to the Commonwealth for adjudication of other charges flowing from the same incident. He contends that the assault and battery and robbery charges, though not brought until the September indictments were returned, must be measured against the August, 1969, to August, 1971, period relevant to the rape complaint. This, in the defendant’s view, was the manifest legislative intent irrespective of the recurrent use of the word “pending.” We cannot agree.
Elementary rules of statutory construction require that each statute be interpreted as enacted.
Davey Bros. Inc.
v.
Stop & Shop, Inc.
Thus, the statute should not be seen as a broad-gouge legislative attempt to help solve the problems underlying the concept of “speedy trial.” The statute has a more restricted application. It “establishes a priority for trials of defendants who are already in custody.”
Commonwealth
v.
Stewart,
II.
The Sixth Amendment to the Constitution of the United States provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.”
6
The rights secured by the speedy trial clause are fundamental to a system of merciful and even-handed justice. Through incorporation in the Fourteenth Amendment, the speedy trial clause guarantees expeditious disposition of charges in prosecutions under State laws.
Klopfer
v.
North Carolina,
Analysis of the speedy trial guaranty divides into two related strands: a preliminary consideration of the time at which the guaranty attaches and a subsequent plenary consideration of the facts in a particular case in terms of the criteria by which the constitutionality of delays is judged.
See Dickey v.Florida,
The United States Supreme Court, in the case of
United States
v.
Marion,
The defendant would distinguish the Marion case on the ground that the pre-accusation delay in that case occurred before any criminal charges had been proffered. He argues that all charges arising from the August 8, 1969, incident should be considered as one unit on the issue of speedy trial. He urges further that his right to a speedy trial on all offenses linked to the incident attached on the issuance of the rape complaint or, at the least, on the lodging of the warrant at Massachusetts Correctional Institution at Concord.
The defendant attempts to buttress his position by excerpting statements from the
Marion
opinion and applying them to his case: at the time of the complaint’s issuance, he “in some way ... [became] an ‘accused.’ ”
United States
v.
Marion,
We believe the rule in the
Marion
case controls the instant case. Each independent charge flowing from a given
Of course, if one charge should constitute a lesser included offense or a greater inclusive offense for the charge first brought,
8
then the delay period would have to relate back to the first accusation. The second charge would be tantamount to a reaccusation on part of the first charge. See
United States v. Alo,
We are aided in assessing the reach of the
Marion
rule by the court’s exposition of the purposes behind the Sixth
Having identified the point at which the Fourteenth Amendment speedy trial guaranty attached to the defendant’s armed robbery and assault and battery indictments, we turn to the test for compliance with the speedy trial requirements of the Fourteenth Amendment. Four factors, “[ljength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant” must interact in a “difficult and sensitive balancing process.”
Barker v. Wingo,
As we noted earlier, the defendant’s right to speedy trial for armed robbery and assault and battery attached at the time of his indictment for those offenses. The delay in trial, therefore, must be measured by the interim between indictments on September 16,1971, and trial on March 21, 1972. 12 Slightly more than six months elapsed between indictment and trial.
The record contains scanty evidence of the reasons for the delay between indictment and trial. The defendant has not established lack of due diligence by the Commonwealth. Similarly, he has not demonstrated deliberate efforts by the Commonwealth to postpone trial. The judge expressly found that no portion of the delay from rape complaint to motion hearing resulted from the intentional actions of the Commonwealth.
14
There is no allegation that docketing was unreasonably deferred. At the time, the defendant did not protest or demand a more expeditious
Such explanation for the delay does not count heavily in favor of the defendant. Though the Commonwealth must shoulder some responsibility for the turgid court docket (see Barker v. Wingo, supra, at 531), the defendant must share the over-all responsibility for the hiatus between indictment and trial. His motion to dismiss resulted in a hearing in the Superior Court and, undoubtedly, set back the trial date. Cf. Commonwealth v. Gilbert, supra. We cannot quantify the responsibility apportioned to each party. However, on this record, we treat reasons for the delay as a factor which provides some very limited support for the defendant’s Sixth Amendment claim.
The defendant did not attempt to accelerate progress from indictments to trial with a specific demand for speedy trial. Failure to demand speedy trial does not automatically cause waiver of the speedy trial right.
Commonwealth
v.
Horne,
The final factor, prejudice to the defendant, does not materially aid the defendant. In his brief, he relies on the effect of the long delay from rape complaint to trial. He asserts that delay impeded his rehabilitation, depressed him, and cost him an opportunity for concurrent sentencing. He claims that the victim’s identification “necessarily” became less reliable as time elapsed.
Consistent with our earlier statements, we decline to consider prejudice suffered because of preindictment delay. The defendant has not demonstrated substantial
The defendant, himself, did not testify. Nothing in the record leads to the conclusion that his failure is attributable to a lapse of memory caused by the passage of time. Quite the contrary, the judge found “that the defendant’s memory on April 27,1970 as to the events of August 8,1969, was no better (and presumably would have been no better within six months after that date) than it is today.”
The Commonwealth’s case could have been prejudiced by delay. The prosecution’s “star witness,” the victim, was an eyewitness, whose memory could have faded. Any uncertainty on the witness stand would have greatly undermined her credibility with the jury. Yet, she made a positive identification in court and was not discredited or shaken in her testimony by cross-examination. We see no prejudice to the defendant in the trial.
Similarly, there is no convincing argument that the
Accordingly, we hold that the Commonwealth did not deny the defendant a speedy trial in contravention of his Fourteenth Amendment and art. 11 rights.
Judgments affirmed.
Notes
The Commonwealth has not challenged the dismissal of the rape conviction by the Appeals Court.
We note in passing that the language “in any court” was added to each draft of the bill by the Senate. 1961 Senate Doc. No. 563. Prior drafts did not have this language. The Senate evidently invested this phrase with some significance. It was retained.
See the analysis in
Commonwealth
v.
Royce,
Careful review of the legislative history convinces us that, even if the statutory language were considered ambiguous, there is no basis for defendant’s construction. See 1959 House Doc. Nos. 473,1960, 2873; 1960 House Doc. Nos. 578, 584, 3036; 1961 House Doc. No. 2157; 1963 House Doc. Nos. 1232, 3406; 1965 House Doc. No. 219; 1961 Senate Doc. No. 563; 1963 Senate Doc. No. 813. See also Thirty-fifth Report of the Judicial Council, Pub. Doc. No. 144, pp. 52-54 (1959).
Adoption of defendant’s argument would encourage district attorneys to over-indict in an attempt to cover all possible offenses — a result which would seem further to congest our criminal courts.
The defendant also claims his right to a speedy trial under art. 11 of the Declaration of Rights of the Massachusetts Constitution. Previously, we have observed that art. 11 and the Sixth Amendment of the Constitution of the United States are “analogous mandate [s].”
Commonwealth
v.
Green,
In the most nearly analogous case,
United States
v.
Davis,
Though the
Davis
decision fortifies our conclusion in the instant case that Sixth Amendment guaranties attached only when indictments were returned for assault and battery and armed robbery, we do not urge it as conclusive for our decision. The court in the
Davis
case did not explicitly confront the meaning of pre-accusation delay in the Sixth Amendment analysis of the
Marian
case and assumed that the pre-accusation delay in the
Davis
situation should encompass time prior to the return of the specific indictments on which the defendants were convicted. More significantly, the court in the
Davis
case overlooked the reindictment for bank robbery. A line of cases in other circuits holds that, when reindictment occurs, the reviewing court must refer back to the time of original
The language is traditional in cases where double jeopardy is to be analyzed. The defendant has been in jeopardy once and that jeopardy bars future prosecutions, if either an included or inclusive offense has once been tried.
Commonwealth
v.
Mahoney,
Commonwealth
v.
Mahoney,
Consideration of pre-accusation delay raises numerous procedural difficulties. Foremost among them is the question how a defendant could prove that the police could have brought a prosecution at a certain time. Protracted inquiry would certainly be necessary.
United States
v.
Marion,
In the
Marion
case, the Federal Trade Commission had subjected the defendant to a cease and desist order three years before indictments were returned. The defendant, in a sense, had already been charged with wrongdoing. He had been alerted to the fact that he was under investigation and, not unreasonably, might have feared subsequent criminal penalties. Yet, the Supreme Court could not credit this anticipation with sufficient damage to invoke the Sixth Amendment. Accord,
United States
v.
Dukow,
Arguably, the date of hearing on the defendant’s motion to dismiss (February 7, 1972) might be taken for purposes of analysis as the date on which trial commenced. The defendant appears to concede in his brief that February 7,1972,
In other cases, e.g.,
Commonwealth
v.
Horne, supra,
and
Commonwealth
v.
Gilbert, supra,
we alluded to a period of delay sufficient to “trigger” searching consideration of the speedy trial question. We have discovered no cases in which a six months’ delay caused dismissal. A nine months’ period seems to mark the minimum delay for which an appellate court has failed to affirm criminal convictions. See
United States
v.
Butler,
The defendant does not challenge this finding. There is some question whether it is supported on the record.
