Commonwealth v. Taylor

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-11398

COMMONWEALTH vs. RODRICK JAMES TAYLOR.

Suffolk. December 5, 2013. - August 29, 2014.

Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly,
& Lenk, JJ.1

Homicide. Constitutional Law, Speedy trial. Practice,
Criminal, Dismissal, Speedy trial, Discovery, Waiver,
Argument by prosecutor.

Indictment found and returned in the Superior Court
Department on July 28, 2006.

A motion to dismiss for lack of speedy trial was heard by
Stephen E. Neel, J., and the case was tried before him; a motion
for postconviction relief, filed on April 28, 2011, was heard by
Diane M. Kottmyer, J.

After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.

Chauncey B. Wood (John Swomley with him) for the defendant.
Sarah H. Montgomery & Kathleen Celio, Assistant District
Attorneys (Edmond J. Zabin, Assistant District Attorney, with
them) for the Commonwealth.

1
Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
 2

Benjamin H. Keehn, Committee for Public Counsel Services,
for Committee for Public Counsel Services, amicus curiae,
submitted a brief.
William M. Jay, of the District of Columbia, Paul F. Ware,
Jr., Joshua M. Daniels, & Kevin P. Martin, for Boston Bar
Association, amicus curiae, submitted a brief.

LENK, J. The defendant appeals from his conviction of

murder in the second degree. He maintains both that a Superior

Court judge erred in denying his motion to dismiss for lack of a

speedy trial pursuant to Mass. R. Crim. P. 36 (b), as amended,

422 Mass. 1503 (1996), and that errors in the prosecutor's

closing argument require reversal.

As to the speedy trial claim, the judge did not abuse his

discretion in denying the defendant's motion to dismiss under

Mass. R. Crim. P. 36, 378 Mass. 909 (1979) (rule 36). A total

of 614 calendar days had elapsed between the defendant's

arraignment and the filing of his motion to dismiss, which

tolled the running of time in which the defendant's trial must

have commenced. See Barry v. Commonwealth, 390 Mass. 285, 294

(1983). However, the Commonwealth met its burden of showing

that at least 249 days were excludable from the speedy trial

calculation, and that the defendant accordingly had been brought

to trial within the requisite one-year period under rule 36.2

2
Although Mass. R. Crim. P. 36, 378 Mass. 909 (1979)
(rule 36), is primarily a rule of case management, see Turner v.
Commonwealth, 423 Mass. 1013, 1013 (1996); Commonwealth v.
 3

Because the defendant acquiesced in certain delays, failed to

object to every continuance sought by the Commonwealth, did not

press a motion under Mass. R. Crim. P. 14 (a) (1) (C), as

appearing in 442 Mass. 1518 (2004), to compel production of

mandatory discovery, and otherwise engaged in ordinary motion

practice, we discern no error in the judge's decision to deny

the defendant's motion to dismiss on speedy trial grounds.

That being said, we nonetheless take this occasion to

examine the difficulties presented when, as here, the

Commonwealth fails timely to comply with its obligations under

Mass. R. Crim. P. 14, as appearing in 442 Mass. 1518 (2004)

(rule 14), to produce mandatory discovery. A defendant must

decide in those circumstances whether to press a motion to

compel production of the requisite discovery, aware that, under

extant case law, doing so automatically will stop the running of

the speedy trial clock, notwithstanding the time it may take to

resolve such a motion. Otherwise put, a defendant who has not

Lauria, 411 Mass. 63, 67 (1991), it was also designed to
"quantify the time limits beyond which a defendant's speedy
trial rights shall be deemed to have been denied," and thus to
facilitate defendants' constitutional right to a speedy trial.
See Reporter's Notes to Rule 36, Massachusetts Rules of Court,
Rules of Criminal Procedure, at 235 (Thomson Reuters 2014). See
also Barker v. Wingo, 407 U.S. 514, 523 (1972). The defendant
does not allege any violation of his constitutional right to a
speedy trial.
 4

timely received mandatory discovery must choose between

preserving his or her speedy trial rights and receiving the

mandatory discovery to which he or she is also entitled. We

address this untenable situation by concluding that the time it

takes to resolve a rule 14 motion brought to compel mandatory

discovery should not, as at present, automatically be excluded

from the speedy trial calculus. Instead, the judge who hears

such a motion must determine on a case-by-case basis whether

delays resulting from its resolution fairly should count towards

the Commonwealth's twelve-month timeline.

Regarding the prosecutor's closing argument, we conclude,

separately, that the defendant is not entitled to a new trial.

Although certain of the prosecutor's remarks were improper, they

did not, viewed in context, constitute reversible error.

1. Background. a. Overview. On July 28, 2006, a Suffolk

County grand jury returned an indictment charging the defendant

with murder in the first degree, G. L. c. 265, § 1; the

defendant was arraigned on August 3, 2006. Six hundred and

fourteen days later, on April 7, 2008, the defendant filed a

"motion to dismiss for lack of speedy trial," which the

Commonwealth opposed. After a nonevidentiary hearing, the

Superior Court judge who later presided at the defendant's trial

denied the motion on May 12, 2008, and issued a written decision

explaining the reasons for that denial on June 27. Trial began
 5

on May 14, 2008, and the case went to the jury on June 26, 2008.

After six days of deliberation, the jury found the defendant

guilty of murder in the second degree; the defendant timely

appealed.

Several years later, the defendant filed a motion for a new

trial, alleging that the trial judge erred in failing to

instruct the jury sua sponte on the relevance of the defendant's

intoxication on the night of the crime and that counsel was

ineffective for failing to request such an instruction.3 A

different judge denied that motion, and the defendant timely

appealed. After consolidating his direct appeal with the appeal

from the denial of his new trial motion, a panel of the Appeals

Court affirmed the defendant's conviction. See Commonwealth v.

Taylor, 83 Mass. App. Ct. 1106 (2013). We granted the

defendant's application for further appellate review, which

asked that we consider only his direct appeal.

b. Facts. i. The Commonwealth's case. The Commonwealth

argued at trial that the defendant strangled the victim, a young

woman named Dominique Samuels, early on Friday, April 28, 2006,

then burned her body in a nearby park early on Sunday, April 30,

2006.

3
See note 2, supra.
 6

The victim lived on Woodbine Street in the Roxbury section

of Boston. Also residing there were brothers Martin and Brian

McCray;4 Martin's cousin, Danielle Taylor;5 and a friend of

Martin. The landlord and her family lived on the first floor.

On the evening of Thursday, April 27, 2006, the defendant and

Martin were drinking alcohol and playing video games in Martin's

room. Just before 10 P.M., Martin left and spent the night at

the home of his girl friend, while the defendant remained in

Martin's room. Later that night, the daughter of the landlord,

whose bedroom was directly beneath Martin's, heard screaming and

loud noises from Martin's room, as did Danielle.

The following morning, the defendant told Martin that he

had "killed her, the girl upstairs, Dominique" by strangling and

choking her. The defendant showed Martin scratches on his arms

and neck that he claimed Dominique had inflicted on him, and

told Martin that the victim's body was in her room at the

Woodbine Street apartment. Between that afternoon, Friday,

April 28, 2006, and the early morning of Sunday, April 30, 2006,

Martin and the defendant had several telephone conversations.

According to Martin, the defendant said that he needed a vehicle

4
We refer to Martin McCray by his first name.
5
Danielle Taylor is not related to the defendant; we refer
to her by her first name.
 7

so he could dispose of the victim's body. The defendant told

Martin that he was going to burn the victim's fingertips because

her nails had his skin beneath them. At 5:30 A.M. on Sunday,

April 30, the defendant telephoned Martin and told him, "It's

done."

The victim's body was discovered in Franklin Park at

approximately 6 A.M. on the morning of April 30, her face and

hands heavily burned. A search of Martin's bedroom produced two

bloodstains, one consisting of the victim's blood and the other

with a deoxyribonucleic acid (DNA) profile consistent with that

of the defendant. Martin informed police investigators that the

defendant had confessed to killing the victim, and after

interviewing the defendant,6 who denied involvement in the

victim's death, police arrested the defendant for murder.

ii. The defendant's theory of the case. The defendant's

central argument was that Martin, not the defendant, had killed

the victim and burned her body, and that Martin was lying about

the defendant's confession. Defense counsel maintained that

cellular telephone records provided an alibi for the defendant

at the time the victim's body was burned.

2. Discussion. a. Speedy trial rights. The time between

the defendant's arraignment and his motion to dismiss for lack

6
The jury heard a recording of this interview.
 8

of a speedy trial was 614 days, 249 days longer than rule 36

provides. Because the resolution of the defendant's speedy

trial claim relies in substantial part on delays occasioned by

the Commonwealth's failure to provide mandatory discovery

pursuant to rule 14, we first examine the relationship between

rule 36 and rule 14.

Rule 36 ensures that defendants are brought to trial within

a reasonable time, requiring that a defendant "shall be tried

within twelve months after the return day[7] in the court in

which the case is awaiting trial." Mass. R. Crim.

P. 36 (b) (1) (C). If the defendant is not brought to trial

within one year, "he shall be entitled upon motion to a

dismissal of the charges." Mass. R. Crim. P. 36 (b) (1). The

twelve-month period may be tolled, however, during those periods

enumerated by Mass. R. Crim. P. 36 (b) (2), or where the

defendant acquiesced in the delay, Commonwealth v. Jones, 6

Mass. App. Ct. 750, 752-753 (1978), was responsible for the

delay, Commonwealth v. Loftis, 361 Mass. 545, 549-550 (1972), or

benefited from the delay. Commonwealth v. Alexander, 371 Mass.

726, 728-729 (1977). See Commonwealth v. Look, 379 Mass. 893,

7
The return day is "the day upon which a defendant is
ordered by summons to first appear or, if under arrest, does
first appear before a court to answer to the charges against
him, whichever is earlier." Mass. R. Crim. P. 2 (b) (15), 378
Mass. 846 (1979). Here, the return date was August 3, 2006,
when the defendant was arraigned.
 9

898 n.2 (1980); Reporter's Notes to Rule 36 (b) (2),

Massachusetts Rules of Court, Rules of Criminal Procedure, at

236 (Thomson Reuters 2014). The Commonwealth bears the burden

of demonstrating that any period of time should be excluded from

the calculation. See Barry v. Commonwealth, 390 Mass. 285, 291

(1983); Commonwealth v. Look, supra.

Rule 14 (a) (1) (A) of the Massachusetts Rules of Criminal

Procedure, as amended, 442 Mass. 1518 (2004), requires the

Commonwealth to produce to the defense, at or before the

pretrial conference, various relevant items in the

Commonwealth's possession, custody, or control.8 See

Commonwealth v. Frith, 458 Mass. 434, 439 (2010), quoting

Commonwealth v. Green, 72 Mass. App. Ct. 903, 903 n.1 (2008)

(mandatory discovery "promote[s] judicial efficiency" and

8
Rule 14 (a) (1) (A) of the Massachusetts Rules of
Criminal Procedure, as amended, 442 Mass. 1518 (2004), provides,
in relevant part:

"The prosecution shall disclose to the defense, and
permit the defense to discover, inspect and copy, each of
the following items and information at or prior to the
pretrial conference, provided it is relevant to the case
and is in the possession, custody or control of the
prosecutor, persons under the prosecutor's direction and
control, or persons who have participated in investigating
or evaluating the case and either regularly report to the
prosecutor's office or have done so in the case . . . ."

The rule then lists nine categories of items that constitute
mandatory discovery.
 10

"encourage[s] full pretrial discovery"). Because rule 14 was

intended to facilitate the automatic production of mandatory

discovery "without the need for motions or argument," Reporter's

Notes (Revised, 2004) to Rule 14, Massachusetts Rules of Court,

Rules of Criminal Procedure, at 179 (Thomson Reuters 2014), and

because the Commonwealth's obligation to produce is ongoing, see

Mass. R. Crim. P. 14 (a) (1), the defendant need not request any

mandatory discovery items.9 Rule 14 "shall have the force and

effect of a court order" such that "failure to provide discovery

pursuant [thereto] may result in application of . . .

sanctions." Mass. R. Crim. P. 14 (a) (1) (C).

i. Denial of defendant's motion to dismiss. A. Pretrial

continuances and discovery motions. The pretrial proceedings

9
The text of Mass. R. Crim. P. 14, as appearing in 442
Mass. 1518 (2004) (rule 14), does not address the steps a
defendant may take to compel production of mandatory discovery
that the Commonwealth has failed to produce, as required, at or
before the pretrial conference. Mass. R. Crim. P. 14 (c), which
addresses the sanctions available in the event of untimely
production, states only that the judge may make discovery
orders, grant a continuance, or grant other relief appropriate
under the circumstances. The Reporter's Notes make clear,
however, that where the Commonwealth has not produced certain
mandatory discovery items enumerated in rule 14 (a) (1) (A), a
defendant's "proper response is to file a motion to compel
discovery or, in an appropriate case, a motion for sanctions
under (a) (1) (C)." Reporter's Notes to Rule 14, Massachusetts
Rules of Court, Rules of Criminal Procedure, at 184 (Thomson
Reuters 2014).
 11

here10 occurred between August 3, 2006, when the defendant was

arraigned, and April 7, 2008,11 when he filed his motion to

dismiss for lack of a speedy trial pursuant to rule 36 (b).

Over the course of those nearly two years, the case was

continued twenty-three times, as detailed below.

The defendant's pretrial conference occurred on

September 7, 2006. At that point, the Commonwealth had not

produced all mandatory discovery as required by rule

14 (a) (1) (A). The defendant thus filed several motions

concerning mandatory discovery in October and November, 2006.

Although in that period he filed a motion to compel all

mandatory discovery pursuant to rule 14 (a), the docket

indicates that the defendant requested the court to reserve this

motion "for a later hearing if necessary." However, the

defendant did not thereafter request such a hearing, nor did he

press his motion in any other way, and the motion was never

10
The regional administrative justice presided over each
hearing in this case, excepting only two dates in July, 2007,
until the point at which the defendant filed his motion to
dismiss. The judge who presided over the defendant's trial also
had decided his rule 36 motion to dismiss and his motion for
sanctions pursuant to Mass. R. Crim. P. 14 (c), as appearing in
442 Mass. 1518 (2004).
11
In December, 2007, the assistant district attorney who
had been prosecuting the case left the Suffolk County district
attorney's office and was succeeded by a different assistant
district attorney, who prosecuted the case throughout trial.
 12

decided. The defendant did not avail himself of any other

remedies pursuant to rule 14 until he filed his motion for

sanctions on April 28, 2008.12 Rather, he made two specific

mandatory discovery requests pursuant to Mass. R. Crim.

P. 14 (a) (1) (A), seeking to procure, first, all statements

made by Martin and, second, all videotape recordings produced or

obtained in connection with the investigation. The judge

granted the two requests and set deadlines for the

Commonwealth's compliance.

Between the September 7, 2006, pretrial conference and May

17, 2007, the judge conducted hearings as to the status of

mandatory discovery. On most of those occasions, the

Commonwealth indicated that it had yet fully to comply with its

rule 14 obligations, and requested additional time to do so.

Defense counsel agreed to each requested continuance, but also

repeatedly stated that he was not waiving his client's rule 36

rights.

At a hearing on May 17, 2007, the judge ordered full

compliance with mandatory discovery by June 5, 2007. The judge

then considered a joint motion filed by the prosecutor seeking

to reschedule the presumptive trial date. Defense counsel

12
In denying the defendant's rule 36 motion to dismiss, the
judge noted, inter alia, the defendant's failure to take action
under rule 14.
 13

agreed to the change in the presumptive date from August 27,

2007, to February 7, 2008, but stated that he did not intend to

"treat[] [the motion to reschedule] as a [r]ule 36 waiver."

Between May 17 and December 4, 2007, further hearings were

conducted as to the status of mandatory discovery. The

Commonwealth again requested additional time to provide the

required items. At a hearing on December 4, 2007, the

prosecutor represented to defense counsel that he had complied

with all mandatory discovery. Defense counsel requested

additional time to review the "voluminous" package, which he had

received on that day, again indicating that he "ha[d] never

waived any [r]ule 36 time." At a December 27, 2007, status

hearing, defense counsel notified the judge that, because the

prosecutor had yet to provide all mandatory discovery,13 he would

not be prepared for the February 7, 2008, trial date. The

Commonwealth then filed a motion requesting that the trial date

be continued to May 2, 2008, which the judge allowed.

On April 7, 2008, the defendant filed a motion to dismiss

for lack of a speedy trial pursuant to the Sixth Amendment to

the United States Constitution and art. 11 of the Massachusetts

13
Between December 19, 2006, and April 1, 2008, defense
counsel sent seven letters to the prosecutors, each listing
items of mandatory discovery that he asserted were still
outstanding.
 14

Declaration of Rights, as well as rule 36. He subsequently

filed a motion seeking sanctions against the Commonwealth for

its failure timely to produce all mandatory discovery pursuant

to Mass. R. Crim. P. 14 (c), as appearing in 442 Mass. 1518

(2004). After nonevidentiary hearings, at which time the

Commonwealth had yet to file the certificate of compliance

required by Mass. R. Crim. P. 14 (a) (3), as appearing in 442

Mass. 1518 (2004),14 the judge denied both motions. On May 9,

during jury selection, the Commonwealth filed its certificate of

compliance, and trial began on May 14.

B. Ruling on the defendant's motion. Because 614 calendar

days had elapsed between the day of the defendant's arraignment

on August 3, 2006, and the day he filed his motion to dismiss

for lack of a speedy trial on April 7, 2008,15 it was the

Commonwealth's burden to show that, of these 614 days, 249 were

14
Rule 14 (a) (3) of the Massachusetts Rules of Criminal
Procedure, as appearing in 442 Mass. 1518 (2004), requires that
the Commonwealth "file with the court a Certificate of
Compliance," indicating a good faith inquiry into relevant
discovery items and the complete production thereof. See
Commonwealth v. Frith, 458 Mass. 434, 440-441 (2010).
15
The twelve-month period began to run on the day after the
defendant's arraignment, see note 7, supra, which was the event
that caused this "period of time to begin to run." Mass. R.
Crim P. 36 (b) (3). See Commonwealth v. Bourdon, 71 Mass. App.
Ct. 420, 424 n.6 (2008). The filing of a motion to dismiss
tolls the relevant time period. Commonwealth v. Sigman, 41
Mass. App. Ct. 574, 575 n.1 (1996), citing Commonwealth v.
Barry, 390 Mass. 285, 294 (1983).
 15

excludable. See Commonwealth v. Mattos, 404 Mass. 672, 674

(1989). On appeal, we consider whether the judge abused his

discretion in assessing the defendant's speedy trial claims.

See Commonwealth v. Fling, 67 Mass. App. Ct. 232, 236 n.9

(2006).

The defendant maintains that the judge abused his

discretion in denying the motion to dismiss because the

defendant did not acquiesce in or benefit from the delays caused

by the Commonwealth's protracted failure to produce mandatory

discovery, and the defendant pointedly and repeatedly indicated

that he was not waiving his rule 36 rights by virtue of such

delay. Although the defendant did not "essentially waive[] his

right to a speedy trial by failing to object to any of the

delay," Commonwealth v. Amidon, 428 Mass. 1005, 1008 (1998), he

did not take adequate steps to preserve his rule 36 rights.

Accordingly, we discern no abuse of discretion in the denial of

his motion to dismiss.

The judge correctly concluded that defense counsel cannot

preserve a defendant's rule 36 rights simply by stating that

those rights are not waived. A defendant must instead

explicitly and formally object, on the record, to each and every

proposed continuance or delay. See, e.g., Commonwealth v.

Bourdon, 71 Mass. App. Ct. 420, 426 (2008) ("formalized

objection . . . serves the vital purpose of notifying both the
 16

prosecutor and the court that attendant delays may not be

excluded from the operation of the rule"); Commonwealth v.

Fling, supra at 236, citing Commonwealth v. Fleenor, 39 Mass.

App. Ct. 25, 28 n.4 (1995) ("an objection to a specific

continuance [must be] timely noted" and should be made on record

or filed in writing).

We discern no error in the judge's determination that the

defendant failed to satisfy these stringent requirements. Of

the twenty-three continuances in his case, sixteen were "by

agreement"; at one hearing, defense counsel agreed to reschedule

the presumptive trial date from August 27, 2007, to February 7,

2008. The defendant invoked rule 36 on just six occasions and

lodged only one formal objection. Indeed, defense counsel

conceded at the hearing on the rule 36 motion that he "didn't

[object] every single time" the Commonwealth requested a

continuance. The defendant nevertheless contends that he

sufficiently preserved his speedy trial rights by informing the

prosecutor and the court that his agreement to various

continuances did not constitute a waiver of rule 36. Our

jurisprudence does not support this construction of the rule. A

defendant may not simultaneously agree to a continuance and

assert his rule 36 rights, even if he or she states, as counsel

did here, that such agreement is not a waiver. See Commonwealth

v. Sigman, 41 Mass. App. Ct. 574, 579 (1996) ("defendant is
 17

bound by his agreement to the continuances"). In light of the

defendant's failure to object to each requested continuance, the

judge properly concluded that counsel's efforts to avoid having

acquiesced in any delay amounted to an impermissible "blanket

objection." See Commonwealth v. Fling, supra at 236 n.9.

Moreover, although the defendant did not benefit from the

Commonwealth's noncompliance with rule 14, the judge found that

the delays occasioned by missing mandatory discovery worked, in

certain respects, to the defendant's advantage. See

Commonwealth v. Vasquez, 55 Mass. App. Ct. 523, 527 (2002). On

at least eight different dates between late 2006 and the eve of

trial, the defendant filed motions for summonses to obtain

third-party records, many concerning certain telephone calls

made by Martin and of cellular telephone tower coverage maps for

several towns in the Boston area. In March, 2007, the defendant

filed a motion for summonses of business records from the Boston

office of the registry of motor vehicles. Previously, he had

requested that the Commonwealth perform DNA testing on certain

items that were to be introduced in evidence. Each of these

motions and requests yielded evidence useful to the defendant's

trial preparation, and would have tolled the speedy trial clock

irrespective of the Commonwealth's untimely production. "Having

benefited from the delay, the defendant cannot now claim that
 18

the delays are chargeable to the Commonwealth." Commonwealth v.

Sigman, supra at 578-579.

Finally, the defendant has not shown that the Commonwealth

was solely responsible for the belated trial date. The

defendant did not avail himself of any remedies pursuant to

rule 14 in the face of the Commonwealth's delayed production of

mandatory discovery. As discussed below, and as the judge

noted, it is incumbent on defense counsel to combat rule 14

violations by filing a rule 14 (c) motion for sanctions or to

compel the production of missing discovery items. Although the

defendant filed such a motion at the outset of his pretrial

proceedings, he never pressed that motion or requested an

attendant hearing. "Such casual steps do not suffice" where

rule 36 is concerned. Commonwealth v. Bourdon, supra at 428.

More is required of a defendant in order to sound the rule 36

"crisis call" and fulfil his or her obligations under the rule.

Id.

Given these considerations, the judge ultimately concluded

that the defendant acquiesced in or benefited from at least 388

days of delay, which exceeded the 249 days the Commonwealth had

the burden to justify. This ruling was not error.

ii. Impact of rule 14 violations on rule 36 speedy trial

calculus. Despite our conclusion that the judge did not abuse

his discretion in denying the defendant's motion to dismiss, we
 19

take this opportunity to address certain problems that may arise

when the Commonwealth does not timely produce all the mandatory

discovery a defendant is due pursuant to rule 14. In this

situation, a defendant is "placed snugly between a rock and a

hard place," United States v. Hastings, 847 F.2d 920, 923 (1st

Cir.), cert. denied, 488 U.S. 925 (1988), and may be forced to

choose between preserving his speedy trial rights and receiving

all mandatory discovery well prior to trial. If a defendant

moves to compel the missing discovery or agrees to a continuance

requested by the Commonwealth, current case law dictates that he

has stopped the speedy trial clock.16 See, e.g., Commonwealth v.

Murphy, 55 Mass. App. Ct. 332, 333 (2002). But if a defendant,

to preserve his rule 36 rights, objects to any requested

continuance or declines to file a motion to compel, he runs the

risk that he will not receive all of the discovery he is owed

before the trial date arrives. See United States v. Hastings,

supra at 923 (defendant faced with absence of mandatory

discovery "could either forgo discovery to which he was entitled

16
Delay occasioned by noncompliance with rule 14 would be
excludable either under Mass. R. Crim. P. 36 (b) (2) (A) (v),
which notes that "delay resulting from hearings on pretrial
motions" shall be excluded, or Mass. R. Crim. P. 36 (b) (2) (F),
which provides in part that where a judge grants a continuance
with the defendant's consent, time spent thereon shall be
excluded.
 20

or he could file a motion to obtain it, thus stopping the speedy

trial clock").

Rule 14 and rule 36 need not be in such tension. A

defendant should not be required to choose between the right to

mandatory discovery and the right to a speedy trial. A

defendant is entitled to both, and his efforts to obtain the one

should not stymie his ability to preserve the other. However,

we are mindful of a defendant's unquestionable "obligation to

press [his] case through the criminal justice system," Barry v.

Commonwealth, 390 Mass. 285, 296-297 (1983), and that a

defendant may not "sit by passively," then later invoke rule 36.

Commonwealth v. Bourdon, supra at 426, quoting Commonwealth v.

Fling, supra at 236. A defendant yet to receive all mandatory

discovery must accordingly take proactive steps to alert the

court and the prosecution that certain items have not been

timely produced, and the vehicle for doing so is a motion for

sanctions or to compel pursuant to rule 14 (a) (1) (C).

For this reason, we now revisit the established principle

that discovery motions filed by a defendant automatically toll

the speedy trial clock. Although this standard is appropriate

where the defendant seeks to obtain discretionary discovery

under rule 14 (a) (2), it makes little sense when a defendant

moves to compel production of discovery he indisputably is owed.

A defendant forced by the Commonwealth's untimely production to
 21

file a rule 14 motion to compel does not "cause" delay in the

same manner as a defendant who files a motion seeking items to

which he is not automatically entitled. Nor can a defendant who

agrees to a continuance fairly be said to have "acquiesced" in

delay, where that continuance was necessary only in light of the

Commonwealth's noncompliance with rule 14.

Where the Commonwealth fails to produce all mandatory

discovery at or before the pretrial conference, therefore, a

defendant should avail himself of the remedies outlined in

rule 14. Specifically, a defendant seeking both to preserve his

speedy trial rights and to obtain items of missing mandatory

discovery must file a motion for sanctions or to compel pursuant

to rule 14 (a) (1) (C).17 In order that a defendant freely may

pursue the discovery he is due without thereby sacrificing his

rule 36 rights, the time it takes to resolve the

rule 14 (a) (1) (c) motion shall not be excluded automatically

from the ultimate speedy trial calculation. This framework

ensures both that a defendant will not sit on his hands and then

later attempt to invoke rule 36, and also that he need not

17
We note, as did the judge hearing the rule 36 motion,
that the defendant in this case never pressed any remedies
pursuant to rule 14 in an effort to address the missing
mandatory discovery. Even under the rule we announce today,
therefore, the defendant's motion to dismiss on speedy trial
grounds would not have been successful.
 22

choose between two procedural rights to which he is equally

entitled.

A rule 14 (a) (1) (c) motion judge is responsible for

determining whether any delay occasioned by the resolution of

that motion should, in fact, toll the speedy trial clock. As

outlined by Mass. R. Crim. P. 36 (b) (2) (F), the judge is to

assess whether "the ends of justice served" by exclusion of time

spent on a rule 14 (a) (1) (c) motion brought to compel

mandatory discovery "outweigh[] the best interests of the public

and the defendant in a speedy trial." This analysis and the

result in each case will depend on a number of factors. Where

there is no reasonable dispute that the discovery in question

is, in fact, mandatory pursuant to rule 14 (a) (1), and where

the Commonwealth cannot justify its delayed production, the

speedy trial clock ordinarily should continue to run while the

motion is resolved. See Commonwealth v. Amidon, 428 Mass. 1005,

1010 (1998) (delay caused by Commonwealth's unjustified untimely

production not excludable as beneficial to defendant);

Commonwealth v. Wysocki, 28 Mass. App. Ct. 45, 49-50 (1989)

(time sought by Commonwealth to comply with routine discovery

requests not excludable).

Nevertheless, there may well be circumstances where it is

appropriate for the speedy trial clock to be tolled. Where, for

example, there is a good faith dispute that the parties have
 23

been unable to resolve as to whether the requested discovery is,

in fact, mandatory under the rule, fairness may dictate that

some or all of the time be excluded from the speedy trial

calculus. The same result might obtain where the Commonwealth

demonstrates that its delayed production was not due to wilful

noncompliance or a lack of due diligence. In each case, "[w]hat

needs to be done is a careful analysis of how each of the

parties with obligations to help manage the case under rule 36

dealt with, or responded to, the problem causing the delay."

Commonwealth v. Lauria, 411 Mass. 63, 70 (1991).

b. Prosecutor's closing argument. We turn to the

prosecutor's closing argument, which, the defendant maintains,

warrants a new trial. We assess the prosecutor's remarks "in

light of the entire argument, as well as in light of the judge's

instructions to the jury and the evidence at trial."

Commonwealth v. Burgos, 462 Mass. 53, 71 (2012), quoting

Commonwealth v. Rodriguez, 437 Mass. 554, 565 (2002). "A

certain measure of jury sophistication in sorting out excessive

claims on both sides fairly may be assumed." Commonwealth v.

Kozec, 399 Mass. 514, 517 (1987).
 24

The defendant primarily takes issue with two remarks.18 The

prosecutor first characterized defense counsel's theory that

Martin, not the defendant, was the killer as a "bald-face lie."

He went on to suggest that, given the jury's obligation to

decide the case only on the evidence before them and the absence

of any evidence that Martin had killed the victim, it would be a

violation of the jurors' oath were they to think Martin the

killer and, on that basis, to disbelieve his testimony

inculpating the defendant. Both statements were ill-advised and

should not have been made. As to the phrase "bald-face lie," a

prosecutor treads on dangerous ground when he can be seen as

accusing defense counsel of engaging in fabrication. See

Commonwealth v. Lewis, 465 Mass. 119, 128-129, 132 (2013)

(prosecutor erred in suggesting entire defense theory was "a

sham" and implying defense counsel had lied to jury).

Similarly, the second comment, while addressing itself to

specific evidence that the prosecutor immediately went on to

discuss at length, in other settings could have been

misunderstood by the jury to mean that they were not permitted

to take a different view of the evidence or credit a theory of

18
The defendant also objects to what he terms the
prosecutor's improper reference to his personal opinion, his
comment allegedly regarding the defendant's decision not to take
the stand, and his disparagement of defense counsel. As to
these statements, we agree with the panel of the Appeals Court
that there was no error.
 25

Martin's guilt without violating their oaths. Prudence counsels

against an invocation of the jurors' oath in this fashion. That

being said, in the circumstances here, we are satisfied that the

prosecutor's isolated if unfortunate remarks did not constitute

prejudicial error requiring a new trial.

Whether prosecutorial error warrants reversal will depend

on a number of factors, including whether the defendant

seasonably objected, whether the error was limited to collateral

issues, whether curative instructions were given, and whether

the error may have made a difference in the jury's conclusions.

See, e.g., Commonwealth v. Kozec, supra at 518. Here, the judge

offered two curative instructions, one contemporaneous in

response to the defendant's objection and one in his final

charge to the jury, both directing the jury to reach their

decision based on the evidence before it. Together, these

instructions sufficed to "mitigate any prejudice in the final

argument." See id. at 517; Commonwealth v. Burgos, supra at 72

n.24.

Moreover, throughout this nearly eight-week trial, the

Commonwealth presented a substantial case against the defendant,

including forensic evidence corroborating his presence at the

site of the victim's death and testimony that he had confessed

to strangling the victim. See Commonwealth v. Degro, 432 Mass.

319, 329 (2000) (prosecutor's erroneous statement not
 26

prejudicial given "very strong" evidence against defendant). In

light of the Commonwealth's strong case and the judge's curative

instructions, the prosecutor's "fleeting" comments cannot

reasonably be thought to have affected the jury's careful

deliberations. Commonwealth v. Cunneen, 389 Mass. 216, 223-224

(1983). After considering the extensive evidence before them

for six days, the jury eventually returned a verdict of murder

in the second degree despite the Commonwealth's strenuous

arguments for a conviction of guilty of murder in the first

degree. See Commonwealth v. Grandison, 433 Mass. 135, 143

(2001) (defendant's acquittal on one charge indicated "jury were

able to sort out any hyperbole").

Judgment affirmed.