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revision and are superseded by the advance sheets and bound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-11705
SJC-11707
COMMONWEALTH vs. NICKOYAN WALLACE
(and a companion case1).
Suffolk. February 4, 2015. - June 30, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk,
JJ.
Homicide. Constitutional Law, Speedy trial, Delay in
commencement of prosecution. Due Process of Law, Delay in
commencement of prosecution. Practice, Criminal, Speedy
trial, Delay in commencement of prosecution, Capital case.
Indictments found and returned in the Superior Court
Department on May 22, 2002.
Motions to dismiss, filed on June 18 and 28, 2010, were
heard by Charles J. Hely, J.
An application for leave to prosecute an interlocutory
appeal in the companion case was allowed by Gants, J., in the
Supreme Judicial Court for the county of Suffolk, and the
appeals were consolidated and reported by him to the Appeals
Court. After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Norman S. Zalkind (Ruth O'Meara-Costello with him) for Timi
Wallace.
1
Commonwealth vs. Timi Wallace.
2
Matthew A. Kamholtz for Nickoyan Wallace.
Sarah Montgomery Lewis, Assistant District Attorney, for
the Commonwealth.
J. Anthony Downs, Samuel Sherry, Catherine Curley, Matthew
R. Segal, Jessie Rossman, & Chauncey B. Wood for American Civil
Liberties Union Foundation of Massachusetts & another, amici
curiae, submitted a brief.
SPINA, J. In this consolidated interlocutory appeal, we
consider whether the Commonwealth's delay in obtaining custody
of the defendants Nickoyan Wallace (Nickoyan) and Timi Wallace
(Timi),2 brothers, from Federal prison authorities impermissibly
affected their right to a speedy trial. In considering this
question in motions to dismiss due to delays totaling more than
nine years,3 a judge of the Superior Court found that Timi's
right to a speedy trial had not been violated but that of
Nickoyan had. A single justice of this court allowed the
interlocutory appeals of Timi and the Commonwealth, consolidated
the cases, and reported them to the Appeals Court. The Appeals
Court held that the Commonwealth had not violated the speedy
trial right of either brother, affirming the denial of Timi's
motion and reversing the allowance of Nickoyan's. Commonwealth
v. Wallace, 85 Mass. App. Ct. 123 (2014). This court granted
2
The victim and defendants are brothers and share the same
surname. Accordingly, we refer to them by their first names
where possible to avoid confusion.
3
The total delays in these cases are over nine years. To
avoid confusion, at various points in this opinion we focus our
analysis on smaller portions of the total delays. The total
delays for both cases remain the same.
3
the brothers' applications for further appellate review. We
affirm the decision of the trial court to deny Timi's motion and
to allow Nickoyan's motion.4
1. Background. The essential facts are not in dispute,
and we recite them as the motion judge found, reserving further
details for discussion of the specific issues raised. On
March 26, 2000, the victim, Tasfa Wallace, was shot to death
through the door of his apartment. Moments before the shooting,
the victim's girl friend had answered knocking at the door and
had seen Timi and Nickoyan, the victim's brothers, through the
door's peephole. Other witnesses saw Timi and Nickoyan entering
and leaving the building at the time of the shooting. The next
day, March 27, criminal complaints accusing Nickoyan and Timi of
murder in the first degree issued from the Dorchester Division
of the Boston Municipal Court Department. Boston police
officers searching for Timi and Nickoyan could not find them and
subsequently learned that both brothers had fled the
Commonwealth.
In April, 2000, the United States District Court for the
District of Massachusetts issued Federal fugitive warrants
naming the defendants and accusing them of the Federal charge of
unlawful interstate flight to avoid prosecution. As a result of
4
We acknowledge the amicus brief filed by the American
Civil Liberties Union Foundation of Massachusetts and the
Massachusetts Association of Criminal Defense Lawyers.
4
the entry of Federal officials into the search, the focus
quickly narrowed on the possibility that the defendants were in
Providence, Rhode Island. On September 25, the defendants
committed an armed robbery of a gun store in Providence. Days
later, on October 5, law enforcement officials arrested Nickoyan
at an apartment in Providence. As police surrounded the
apartment to arrest him, Nickoyan was able to telephone Timi.
Timi fled and was not arrested until July 20, 2004. Both
defendants were indicted for armed robbery and related charges
by a Federal grand jury on October 18, 2000.
Nickoyan was arraigned on the Federal armed robbery charges
on October 26, 2000, and placed in pretrial custody. Nickoyan's
trial ended in a conviction on November 8, 2001, and his
sentence of seventeen years began on March 19, 2002. Nickoyan
immediately appealed from his convictions. The United States
Court of Appeals for the First Circuit affirmed his conviction
in August, 2003. United States v. Wallace, 71 Fed. Appx. 868
(1st Cir. 2003).
Timi's arrest, arraignment, and trial in Federal court came
soon thereafter. Timi was convicted and began his sentence of
twenty-five years on January 21, 2005. He also immediately
appealed from his conviction. The First Circuit affirmed his
convictions in August, 2006. United States v. Wallace, 461 F.3d
15 (1st Cir. 2006). Both defendants also pursued appeals
5
collaterally attacking the propriety of their sentences. See
United States v. Wallace, 573 F.3d 82 (1st Cir.), cert. denied,
558 U.S. 1036 (2009); United States vs. Wallace, No. 06-2606
(1st Cir. May 23, 2008).
Following Nickoyan's Federal trial, a Massachusetts grand
jury issued indictments against Nickoyan and Timi accusing them
of the murder of Tasfa. Electronic mail messages obtained from
the district attorney's office demonstrate that prosecutors were
aware that both Nickoyan and Timi were in Federal custody. The
case was assigned to several assistant district attorneys over
the period from 2000 until 2007. Not until 2009 did prosecutors
initiate the necessary steps to gain custody of Nickoyan and
Timi from Federal prison authorities under the Interstate
Agreement on Detainers (IAD). St. 1965, c. 892, § 1. Detainers
against both Nickoyan and Timi were issued on July 16, 2009.
Nickoyan was arraigned in Superior Court on December 9, 2009,
and Timi on November 25, 2009.
2. Interstate Agreement on Detainers. As we previously
have explained, the IAD establishes the "procedures by which one
jurisdiction may obtain temporary custody of a prisoner
incarcerated in another jurisdiction for the purpose of bringing
that prisoner to trial." Commonwealth v. Copson, 444 Mass. 609,
611 (2005), quoting Cuyler v. Adams, 449 U.S. 433, 436 n.1
(1981). The IAD only applies to persons who have "entered upon
6
a term of imprisonment in a penal or correctional institution of
a party state." St. 1965, c. 892, § 1, art. III (a). The
Federal government is a party State. Id. at § 1, art. II (a).
The necessary first step to applicability of the IAD is the
filing of a detainer by the jurisdiction seeking custody. See
St. 1965, c. 892, § 1, art. I (regulating determination of
status of any and all detainers). A detainer is "a legal order
that requires a State in which an individual is currently
imprisoned to hold that individual when he has finished serving
his sentence so that he may be tried by a different State for a
different crime." Copson, supra at 611 n.1, quoting Alabama v.
Bozeman, 533 U.S. 146, 148 (2001). Once a detainer is filed,
the IAD governs the procedures by which either a party State or
a prisoner may request the disposition of any untried charges.
Copson, supra at 611. If a party State requests custody of a
prisoner to pursue untried charges, trial must commence within
120 days of arrival of the prisoner in the receiving State. St.
1965, c. 892, § 1, art. IV (c). If a prisoner against whom a
detainer is filed requests disposition of untried charges, the
party State filing the detainer must bring the detainer to trial
within 180 days of the delivery of the prisoner's request to the
prosecuting officer and the appropriate court. Id. at § 1, art.
III (a). Failure to abide by either of these time limits
7
requires that the party State filing the detainer dismiss the
charges with prejudice. Id. at § 1, art V (c).
3. Discussion. The defendants allege that their right to
a speedy trial under the Sixth Amendment to the United States
Constitution and art. 11 of the Massachusetts Declaration of
Rights has been violated by the years-long delays between the
issuance of the criminal complaints accusing them of the murder
of their brother and their arraignments for that crime. In
reviewing a motion to dismiss because of a speedy trial
violation, we give deference to the findings of the motion
judge, but we may reach our own conclusions. See Commonwealth
v. Martin, 447 Mass. 274, 280 (2006). "Simply to trigger a
speedy trial analysis, an accused must allege that the interval
between accusation and trial has crossed the threshold dividing
ordinary from 'presumptively prejudicial' delay." Doggett v.
United States, 505 U.S. 647, 651-652 (1992), citing Barker v.
Wingo, 407 U.S. 514, 530-531 (1972). When a defendant has
demonstrated an unreasonable delay giving rise to the
possibility of prejudice, we utilize the four-factor balancing
test first set out in Barker to determine whether the
defendant's constitutional right to a speedy trial has been
violated by the delay. Doggett, supra at 651, citing Barker,
supra at 530. The presumption of prejudice derived from a delay
cannot be the sole basis of a speedy trial claim but rather is
8
"part of the mix of relevant facts." Doggett, supra at 655-656.
In determining whether the right to a speedy trial has been
violated, we must weigh (i) the length of the delay, (ii) the
reasons for the delay, (iii) the defendants' assertions of their
right to a speedy trial, and (iv) the prejudice to the
defendants (through the lens of Doggett). See Commonwealth v.
Butler, 464 Mass. 706, 714-715 (2013). See also Barker, supra
at 530-533. While we ultimately decide this case under the
right to a speedy trial enshrined in art. 11, the analysis is
analogous to that of the Federal right. Butler, supra at 709
n.5.
a. Length of the delays. Length of delay "is actually a
double enquiry." Doggett, 505 U.S. at 651. An unreasonable
delay is the trip wire giving rise to speedy trial analysis.
Id. In Massachusetts, we calculate this time beginning from the
moment of formal accusation -- in this case, from the moment the
criminal complaints issued from the Boston Municipal Court on
March 27, 2000. Butler, 464 Mass. at 713.5 The almost ten-year
delays certainly are sufficient to trigger a speedy trial
5
Less clear in this instance is whether the clock tolls at
the filing of the detainer for both defendants in July, 2009, as
urged by the Commonwealth, or their arraignments in late 2009,
as the defendants would have it. The nearly six month
difference is immaterial in our analysis given the total delays
of over nine years, and we need not decide this question on
these facts. We note that the Interstate Agreement on Detainers
(IAD) itself does not set a time limit on when a detainer must
be filed. See St. 1965, c. 892, § 1.
9
analysis under Barker. See Doggett, supra at 652 (delay of
eight and one-half years); Butler, supra at 715 (ten-year
delay).
We additionally weigh them independently as a factor.
Doggett, supra at 651-652. The delays are weighted according to
the reasons put forth for their justification under the second
factor. Barker, 407 U.S. at 531. In any instance, these delays
weigh against the Commonwealth.6
b. Reasons for the delays. The reason for the delay is
the "flag all litigants seek to capture." United States v. Loud
Hawk, 474 U.S. 302, 315 (1986). Weighing most heavily against
the government are deliberate attempts at delay. Barker, 407
U.S. at 531. Of equal weight but opposite import to a defendant
are "delays requested or otherwise orchestrated by the
defendant, such as evading capture by authorities."
Commonwealth v. Carr, 464 Mass. 855, 861 (2012). The more
neutral reasons "such as negligence or overcrowded courts should
be weighed less heavily but nevertheless should be considered
since the ultimate responsibility for such circumstances must
6
As noted by the defendants, this factor measures the total
delay from formal accusation. The assignment of reasons for a
particular part of the delay remains the second prong of the
analysis under Barker v. Wingo, 407 U.S. 514, 530 (1972). See
Commonwealth v. Carr, 464 Mass. 855, 861 (2013) (measuring
entirety of delay caused by defendant's flight).
10
rest with the government rather than with the defendant."
Barker, supra at 531.
The defendants both urge that the only part of the delays
that should be attributed to them is the period between the
issuance of the complaints and their individual arrests. For
Nickoyan, this period is about six months, and for Timi, this
period is just over four years. The brothers urge that the
reason for the remaining delays is wholly attributable to the
Commonwealth.
We do not interpret the delays as the defendants urge.
While we agree that the delays between issuance of the
complaints and their arrests are attributable to the defendants
due to their flight, we do not think their complicity in the
orchestration of the delays stops there. Both Timi and Nickoyan
claim that because they were arrested on fugitive warrants
issued due to Massachusetts charges but were first subjected to
trial on the Federal armed robbery indictments, the delays from
Federal arraignment to Federal sentencing should not count
against them. Rather, they argue, the reason for the delays
rests with the Commonwealth because the Commonwealth failed to
assert its primacy in prosecuting the brothers.
We will not fault the Commonwealth for not insisting on
being the first in line to prosecute a fugitive in out-of-State
Federal custody who has committed additional serious crimes
11
while in flight. Instead, we view the defendants' Federal trial
as an extension of their conscious decision to flee prosecution
and commit the intervening crime. Indeed, were we to view the
situation in the light now urged by the defendants and require
the Commonwealth to bring its case before the Federal
prosecution, it is difficult to see how they would not attempt a
similar claim of a violation of the speedy trial right at the
Federal level in this scenario because Federal authorities would
have relinquished in-hand custody of the defendants only to try
them at a later date after their Massachusetts trial.
Furthermore, the judge took judicial notice from personal
experience of the difficulty of obtaining prisoners in Federal
custody while Federal authorities were actively prosecuting
those prisoners. The period between Federal arraignment and
Federal sentencing must weigh against the defendants. Cf.
United States v. Grimmond, 137 F.3d 823, 828 (4th Cir.), cert.
denied, 525 U.S. 850 (1998) ("Simply waiting for another
sovereign to finish prosecuting a defendant is without question
a valid reason for delay"). Cf. also Commonwealth v. Domanski,
332 Mass. 66, 72 (1954); Ableman v. Booth, 62 U.S. (21 How.)
506, 524 (1858) ("No judicial process, whatever form it may
assume, can have any lawful authority outside of the limits of
the jurisdiction of the court or judge by whom it is issued . .
.").
12
More difficult to weigh is the period after the defendants'
Federal sentencing when they became subject to the IAD. The
motion judge found this period to be characterized by a
"cumulative lack of attention by the [d]istrict [a]ttorney's
[o]ffice to the duty to file detainers in this case within a
reasonable time." In Nickoyan's case, this cumulative lack of
attention lasted over seven and one-half years, enough for the
judge to determine Nickoyan's right to a speedy trial had been
violated. Nickoyan, of course, urges that the motion judge was
correct in this finding. Timi's delay between sentencing and
the filing of the detainer was shorter, just over four years.
The motion judge found that Timi's right to a speedy trial had
not been violated because the part of the delay caused by Timi's
deliberate flight was longer than that caused by the
government's neglect in filing a detainer.
Timi argues that this delay should weigh heavily enough
against the Commonwealth to warrant reversal. He points out
that the years-long failure to gain custody indicates the low
prosecutorial priority to bring him to trial and that the
failure of each successive assistant district attorney to act
should compound the failure of the previous one. Moreover, he
disputes the motion judge's calculations of the length of delay
13
weighing against him and the Commonwealth.7 Finally, he says
that the Commonwealth's failure even to attempt to procure him
prior to his Federal sentencing should cause the delay after
sentencing to weigh even more heavily against the Commonwealth.
While we acknowledge the validity of Timi's arguments with
the exception of the judge's calculations of the delay, we do
not grant them the weight he would have us give them. We have
already stated that the moment of formal accusation marks the
beginning of the calculation of delay. Likewise, we have
discussed the issue of Federal authorities pursuing a
prosecution prior to the Commonwealth. The delay caused by Timi
from his flight through his Federal sentencing is roughly
commensurate with the Commonwealth's delay in filing a detainer.
These comparable delays are not weighed equally, however.
Timi's deliberate orchestration of the delay weighs more heavily
than the Commonwealth's mere neglect. Accordingly, the reason
for the entirety of the delay -- as set out in Barker -- must
ultimately lie at Timi's feet due to the greater weight placed
on his contribution to the delay.
7
Timi argues that the period of about eight months between
the vacation of his sentence by the Federal Court of Appeals and
his resentencing should not be weighed against him as the motion
judge did. We agree with the motion judge that this time should
count against him, as it is a consequence of his deliberate
action while fleeing the Massachusetts charges.
14
The reason for delay in Nickoyan's case does not require
such fine balancing of weights. The delay of seven and one-half
year between Federal sentencing and the detainer seems excessive
and the motion judge counted the length of time heavily. The
Commonwealth argues that the explanation of this delay lies in a
confluence of individual factors that make the Commonwealth's
delay less egregious, if not outright excusable. While we do
agree with the Commonwealth that the fault is not so indivisible
and uniform as Nickoyan would have us view it, we look with
extreme disfavor on a delay of this length.
The Commonwealth puts forth the initial premise that its
intent throughout the entirety of this case was to try both
defendants together. The judge recognized that such a desire
could permit some delay. Indeed, from a case management
perspective, such a desire would seem eminently logical. The
brothers are accused of acting in concert at the same place and
at the same time. A prosecution of one would involve almost
entirely the same evidence that could be used against the other.
The idea that the delay in attempting to coordinate the custody
of codefendants so that the government might jointly prosecute
them for substantially the same criminal offense arising from
the same set of facts has some support in Sixth Amendment
jurisprudence. See United States v. Casas, 425 F.3d 23, 34 (1st
Cir. 2005), cert. denied, 547 U.S. 1061 (2006) ("the joint
15
prosecution of defendants involved in the same drug trafficking
conspiracy is justified as a means of serving the efficient
administration of justice"). Cf. Parker v. United States, 404
F.2d 1193, 1196 (9th Cir. 1968) (substantial public interest in
joint trials because joinder "expedites the administration of
justice, reduces the congestion of trial dockets, conserves
judicial time, lessens the burden upon citizens who must
sacrifice both time and money to serve upon juries, and avoids
the necessity of recalling witnesses who would otherwise be
called upon to testify only once"). We do not go so far as to
say that the interest in jointly trying codefendants should or
can rationalize a seven-year delay. Rather, we recognize that
some delay may sometimes be justified when seeking to satisfy
the public interest in this respect. It is not so justified
here.
Having accepted the premise that serving the public
interest through a joint trial was the Commonwealth's
overarching goal, we can analyze its actions with more nuance.
The Commonwealth stresses that its major concern with filing a
detainer was the invocation of the speedy trial provisions of
the IAD by one of the defendants. In such a circumstance, the
Commonwealth understood that it had to commence trial within 120
days of the receipt of a request by a prisoner to dispose of the
detainer or risk dismissal of the charges with prejudice. With
16
such a drastic scenario of dismissal hanging in the balance of
the decision of when to file a detainer, the Commonwealth acted
cautiously in proceeding against the defendants. A hasty or
ill-timed move on the part of the prosecution would result in
the complete inability to pursue the serious charge of murder in
the first degree. Barker itself recognized that the underlying
charge can have an effect on the leeway a reviewing court will
give the government in analyzing a speedy trial challenge.
Barker, 407 U.S. at 531 ("To take but one example, the delay
that can be tolerated for an ordinary street crime is
considerably less than for a serious, complex conspiracy
charge").
Yet the important fact remains that the Commonwealth could
have filed a detainer against Nickoyan at any time
postsentencing because he was serving a "term of imprisonment"
under the IAD but did not do so. St. 1965, c. 892, § 1, art.
III (a). Notwithstanding the early applicability of the IAD,
the Commonwealth operated under a legally mistaken impression
that a request for the transfer of custody of the defendants
from the Federal authorities was not a practical option until
the dust from the posttrial motions and appeals had settled. If
the Commonwealth was waiting for a moment when it could be
reasonably certain it would gain custody of both defendants at
the same time to try them within the time prescribed by the IAD,
17
we can certainly entertain that the Commonwealth erred on the
side of what it viewed as reasonable caution, especially in
light of, as further urged by the Commonwealth, the more
immediate and pressing caseload of the assistant district
attorneys. While we appreciate Nickoyan's implicit assertion
that the delay attributed to Timi cannot also weigh against him,
the fact remains that their cases are essentially the same and
the degree of fault attributable to the Commonwealth cannot be
viewed through a lens that does not take into consideration the
confusion that flowed from the defendants' efforts to avoid
prosecution.
None of these factors individually or collectively,
however, can change the fact that the reason for the delay after
Federal sentencing in Nickoyan's case is ultimately the
Commonwealth's negligence. We emphasize this point. As we have
explained, determining the ultimate reason for the delay in
Nickoyan's case requires us to balance a two-year delay
resulting from deliberate flight and a Federal trial with the
seven-year long negligence of the Commonwealth to bring charges.
This balance is not the simple math that seven is greater than
two. Nickoyan's deliberate actions weigh far more heavily than
the Commonwealth's failures, but even accepting the
Commonwealth's justifications, the seven years of prosecutorial
inaction are excessive and outweigh that part of the delay
18
attributable to Nickoyan. We agree with the trial judge,
however, that the delay occasioned by the Commonwealth was not
deliberate, but negligent. The reason for the delay in
Nickoyan's case lies at the Commonwealth's feet.
c. Defendants' assertion of their speedy trial right.
"[A] defendant's assertion of his speedy trial right . . . is
entitled to strong evidentiary weight," but "the failure to
assert the right will make it difficult for a defendant to prove
that he was denied a speedy trial." Barker, 407 U.S. at 531-
532. While it is not necessary that "a defendant must storm the
courthouse and batter down the doors to preserve his right to a
speedy trial," we do require some affirmative action. Butler,
464 Mass. at 716. We keep in mind the presumption that inaction
cannot constitute waiver of a constitutional right. See Barker,
supra at 525-526. The parties do not dispute that neither Timi
nor Nickoyan asserted a right to a speedy trial prior to the
motion to dismiss.
The motion judge found that Timi and Nickoyan never took
any steps consistent with an assertion of a right to a speedy
trial. Both defendants were aware that the Boston police were
looking for them when they fled the Commonwealth in 2000.
Additionally, Timi was informed on the record at both his
Federal arraignment and sentencing of the existence of murder
charges in Massachusetts. Furthermore, Timi and Nickoyan
19
refused to sign a form requesting a speedy disposition of the
charges after the detainer had been filed.
Timi and Nickoyan argue that the failure of each to assert
his right to a speedy trial should not weigh against him until
he had formal notice of the indictment against him, a moment
that occurred much later in the period in question. Judging the
defendant's assertion of the right to a speedy trial only after
formal notice of the indictment creates a standard that elevates
form over substance. We decline to adhere to a rule requiring
receipt of formal notice, nor do we think the defendants'
position finds support in case law. The right to a speedy trial
attaches upon formal accusation, Butler, 464 Mass. at 713, here,
the issuance of the complaints of which the defendants had
notice. From his flight to evade prosecution after the murder
of his brother as well as the multiple times he was informed of
the existence of murder charges in Massachusetts during the
process of his Federal trial, we reasonably can infer that Timi
had sufficient notice of the charges against him to weigh his
failure to assert his right to a speedy trial in the
Commonwealth's favor.
Similarly unavailing is Nickoyan's claim that he lacked
formal notice of the indictment against him and that the
Commonwealth deliberately withheld information of the charge
from him. We see no evidence in the record before us that the
20
Commonwealth deliberately hid the fact of the indictment from
Nickoyan as he argues. At his arraignment on the Federal armed
robbery charges in October, 2000, the fact that Nickoyan was
wanted as a fugitive from a murder charge in Massachusetts was
part of the government's argument as to why Nickoyan should not
be released from pretrial custody. We again reject the argument
that the lack of formal notice of the indictment relieves a
defendant of the impact of a failure to assert the right to a
speedy trial for the length of time at issue here.8
Timi and Nickoyan counter that they still should not be
faulted because they were unrepresented on the murder charges
and were unaware of the right to a speedy trial. In weighing
the impact of the defendants' failure to assert their right to a
speedy trial, representation by counsel and awareness of the
right are factors in the analysis but not prerequisites. The
8
It is important to understand that in the circumstances
here, a complaint for murder in the Boston Municipal Court has
functional significance under the IAD on detainers. For
example, if a murder complaint were pending in the Boston
Municipal Court or a District Court, a defendant would be
entitled, upon notice under the IAD, to a probable cause hearing
under Mass. R. Crim. P. 3 (f), as appearing in 442 Mass. 1502
(2004), within the time provided for trial under the IAD. If,
after hearing, no probable cause were found, the defendant would
have to be returned to the host State. If after hearing
probable case were found, the Commonwealth would have to obtain
an indictment and commence trial thereon conformably with the
IAD. Alternatively, in lieu of a probable cause hearing, the
Commonwealth could satisfy the requirements of the IAD by
obtaining an indictment and dismissal of the murder complaint,
and by commencing trial on the indictment within the time
provided under the IAD.
21
defendants would have the Commonwealth affirmatively demonstrate
that they were aware of the right to a speedy trial in order for
the failure to assert it to weigh against them. See
Commonwealth v. Blaney, 5 Mass. App. Ct. 96, 98 (1977) (no
indication defendant was aware of right to speedy trial).
In this case, we think such an inquiry unnecessary, and
thus, we decline to accept the defendants' contention. At his
Federal arraignment, the judge acknowledged Nickoyan's oral
request for a speedy trial. Nickoyan was not unfamiliar with
the legal process -- he filed a private suit against one of the
assistant district attorneys in this case. Nickoyan also
refused to sign a form requesting prompt disposition of the
charges after the detainer had been filed. In these
circumstances, we think it unlikely that Nickoyan was so naive
as to the legal process that his lack of counsel on the State
charges and claimed ignorance of the right to a speedy trial
should obviate his failure to assert the right.
Similarly, Timi was not unaware of his right to a speedy
trial. He chose not to exercise it. At his Federal
resentencing following a successful appeal, Timi's counsel
argued that the pendency of a seven year old murder charge
should not impact any new sentence imposed. Counsel
specifically referenced the IAD and its speedy trial provision.
When finally confronted with the opportunity to address the
22
murder charges after a detainer had been filed, Timi refused to
sign the form. If we can draw any inference from his actions,
we cannot conclude that Timi acted with the caution that he
claims might be expected from an unrepresented defendant but
that Timi hoped to avoid prosecution for as long as possible.
To emphasize, the failure by the defendants to assert their
speedy trial right is not a waiver of the right itself but
simply a factor to be weighed. "The speedy trial right is not
one which may be kept in reserve in the event that one's belief
that the prosecution has overlooked or decided not to pursue his
case proves to be erroneous." Commonwealth v. Look, 379 Mass.
893, 901, cert. denied, 449 U.S. 827 (1980). Here, we find it
difficult to accept the defendants' claims of ignorance as the
source of their failure to assert the right. Instead, we infer
an effort to "fly under the radar." Butler, 464 Mass. at 717.
Accordingly, this factor weighs against the defendants more than
the Commonwealth but not heavily so. We reiterate that weighing
the failure to assert the right is not akin to wholesale waiver.
d. Prejudice to the defendants. This case fundamentally
turns on the characterization of the Commonwealth's conduct from
the time of the defendants' Federal sentencing until their
arraignment in Superior Court and the effect of this delay on
the basic interests the Sixth Amendment and art. 11 were
designed to protect. The motion judge likened the
23
Commonwealth's failure to file a detainer under the IAD to
neglect. This determination is entitled to deference. See
Commonwealth v. Martin, 447 Mass. 274, 284 (2006). The Supreme
Court has noted that prosecutorial negligence falls in the
middle ground of the spectrum bookended by prosecutorial
diligence and bad faith delay. See Doggett, 505 U.S. at 656-
657. However, official negligence "falls on the wrong side of
the divide between acceptable and unacceptable reasons for
delaying a criminal prosecution once it has begun." Id. at 657.
"[S]uch is the nature of the prejudice presumed that the weight
we assign to official negligence compounds over time as the
presumption of evidentiary prejudice grows." Id. Judicial
tolerance of such negligence "varies inversely with its
protractedness . . . and its consequent threat to the fairness
of the accused's trial" (citation omitted). Id.
Here the only time in question possibly attributable to the
Commonwealth -- and thus giving rise to the presumption of
prejudice -- is the time between Federal sentencing and
arraignment in this case. For Timi, this period was over four
years. For Nickoyan, it was approximately seven years and three
months. The motion judge characterized this delay as the
"result of a cumulative lack of attention by the [d]istrict
[a]ttorney's [o]ffice to the duty to file detainers in this case
within a reasonable time."
24
In Doggett, Federal officials attempted to arrest the
defendant by going to his parents' residence. 505 U.S. at 649.
Informed that the defendant had left the country a few days
earlier, the government placed the defendant's name in a
database designed to alert when he reentered the country. Id.
Subsequently, the investigating officers discovered that the
defendant was serving a sentence in a foreign prison. Id.
Despite a promise to expel the defendant to the United States
upon his release, officials in the foreign jurisdiction allowed
the defendant instead to go to a different country. Id.
Meanwhile, the alerts in the central database had expired. Id.
One year later, the defendant returned to the United States,
earned a college degree, married, lived openly under his own
name, and stayed within the law. Id. Federal officials,
meanwhile, had learned of his entry into the third country but
not of his return to the United States. Id. at 649-650. It was
only after officials ran a credit check on persons named in
outstanding warrants that the defendant was discovered,
arrested, and arraigned. Id. at 650.
This discovery, arrest, and arraignment took place eight
and one-half years after his indictment and six years after his
return to the United States and subsequent adoption of a law-
abiding lifestyle. The defendant moved for a dismissal of the
charges against him based on a violation of his Sixth Amendment
25
right to a speedy trial. Id. The Federal District Court denied
his motion because, although the defendant was blameless for the
delay and the government's negligence was entirely to blame, the
defendant could not show any particular prejudice to his
defense. Id.
The Supreme Court disagreed. Id. at 651. Although the
defendant could not show any particularized prejudice, the lapse
of time had entitled him to the rebuttable presumption of
prejudice. Id. at 657-658. The unreasonable delay between
formal accusation and trial can produce more than one sort of
harm, "including oppressive pretrial incarceration, anxiety and
concern of the accused, and the possibility that the accused's
defense will be impaired by dimming memories and the loss of
exculpatory evidence" (quotations and citations omitted). Id.
at 654. Accord Commonwealth v. Hanley, 337 Mass. 384, 387,
cert. denied, 358 U.S. 850 (1958) (giving same rationale for
speedy trial right). "Of these forms of prejudice, 'the most
serious is the last, because the inability of a defendant
adequately to prepare his case skews the fairness of the entire
system.'" Doggett, supra, quoting Barker, 407 U.S. at 532. The
court held that the government had not persuasively rebutted the
presumption of prejudice. Doggett, supra at 658 n.4.
The defendant in Doggett had been unaware of the
indictments against him. Id. at 653-654. It was this lack of
26
awareness coupled with the delay that impacted one of the
interests protected by the speedy trial right -- the impairment
of the accused's defense. In explaining how delay and lack of
knowledge can impair a defense, Justice Douglas, in a concurring
opinion discussing the application of the right to a speedy
trial to delays that occur before formal accusation, quoted the
following explanation:
"Indeed, a suspect may be at a special disadvantage
when complaint or indictment, or arrest, is purposefully
delayed. With no knowledge that criminal charges are to be
brought against him, an innocent man has no reason to fix
in his memory the happenings on the day of the alleged
crime. Memory grows dim with the passage of time.
Witnesses disappear. With each day, the accused becomes
less able to make out his defense. If during the delay,
the Government's case is already in its hands, the balance
of advantage shifts more in favor of the Government the
more the Government lags. Under our constitutional system
such a tactic is not available to police and prosecutors."
United States v. Marion, 404 U.S. 307, 331 n.3 (1971) (Douglas,
J., concurring in the result), quoting Nickens v. United States,
323 F.2d 808, 813 (1963) (Wright, J., concurring in the result).
This explanation starkly underscores the conflict the
presumption of prejudice seeks to overcome. To maintain the
relative positions of the parties as if no delay had occurred,
there exists a presumption of prejudice to balance against a
recognized but unquantifiable governmental advantage growing
27
with the passage of time.9 See Dickey v. Florida, 398 U.S. 30,
54-55 (1970) (Brennan, J., concurring) ("Because potential
substantial prejudice inheres in the denial of any of these
safeguards, prejudice is usually assumed when any of them is
shown to have been denied"). With this goal in mind, we can
easily recognize that the contours of the various concerns that
affect prejudice are dynamic and fact-specific.
The Supreme Court recognized that the presumption of
prejudice may not always carry the day for a defendant. The
prosecution may yet still persuasively rebut the presumption of
prejudice. See Doggett, 505 U.S. at 658 ("when the presumption
of prejudice, albeit unspecified, is neither extenuated, as by
the defendant's acquiescence . . . nor persuasively rebutted,
the defendant is entitled to relief" [footnotes omitted]). We
defer to the motion judge's determination that the defendants
did not suffer oppressive pretrial incarceration or anxiety and
concern due to the delay. Therefore, the Commonwealth
persuasively must rebut the presumption that the delay has
prejudiced the ability to present a meaningful defense.
9
Clearly, a delay also can impair the prosecution's case.
In a speedy trial analysis, a necessary precondition is that the
Commonwealth feels its evidence is strong enough to bring the
case forward. In considering the existence -- whether actual or
presumed -- of prejudice, therefore, we need not account for the
effect of the delay on the Commonwealth's evidence.
28
The Commonwealth argues that it persuasively has rebutted
the presumption of prejudice because much of the Commonwealth's
evidence has been preserved. All of the witnesses but one are
still available to testify. However, this assertion is only
half of the analysis because "the passage of time is a double-
edged sword." Butler, 464 Mass. at 717-718. To rebut
persuasively a presumption of prejudice, the Commonwealth not
only must demonstrate that its case has not been impacted by the
passage of time, but also must show that the defendant's case
has not suffered any prejudice. See United States v. Molina-
Solorio, 577 F.3d 300, 307 & n.4 (5th Cir. 2009). This bar is
difficult to meet. See Uviller, Barker v. Wingo: Speedy Trial
Gets a Fast Shuffle, 72 Colum. L. Rev. 1376, 1394-1395 (1972).
The Commonwealth has failed to -- and likely cannot --
demonstrate that the defendants have suffered no prejudice.
This fact, however, is not dispositive of our analysis of the
fourth Barker factor. Instead, the weight of this factor also
is affected by any circumstances that may extenuate the
prejudice. See Doggett, 505 U.S. at 658. Timi's time in
flight, nearly half of the total delay and attributable wholly
to his deliberate action, is a circumstance that extenuates the
prejudice caused by the entirety of the nine-year delay and
accordingly lessens the weight of this factor in the final
summation of the Barker test in his case. Nickoyan's much
29
shorter flight and longer postsentencing delay does not
extenuate the prejudice as much as in Timi's case. We therefore
place greater weight on the fourth Barker factor in Nickoyan's
favor and less in Timi's.
e. Weighing the Barker factors. No single factor nor
specific combination thereof is a "necessary or sufficient
condition to the finding of a deprivation of the right of speedy
trial." Barker, 407 U.S. at 533. The balancing of the factors
is "difficult and sensitive." Id. We discuss the balancing of
the factors for Nickoyan and Timi in turn.
The total delay of nine years weighs against the
Commonwealth in Timi's case but is heavily mitigated by the fact
nearly half of the delay was caused by Timi's flight and Federal
trial. Furthermore, Timi took no action consistent with
asserting his speedy trial right. Any presumption of prejudice
weighing in Timi's favor is extenuated by his flight. In the
totality of the circumstances, we are confident in saying that
Timi's right to a speedy trial has not been violated, as the
motion judge determined.
Nickoyan faced the same total nine-year delay as Timi, and
thus that factor must weigh in his favor. As we have stated,
the reason for the delay post-Federal sentencing is due to the
negligence of the Commonwealth in bringing Nickoyan to trial.
That factor must also weigh in Nickoyan's favor. Although
30
Nickoyan also took no action consistent with asserting his
speedy trial right, this factor is offset by the presumption of
prejudice for which we must account and which is neither
otherwise extenuated nor persuasively rebutted. In the final
weighing, the Barker factors clearly point to a violation of
Nickoyan's right to a speedy trial as the motion judge also
determined.
f. Rule 36 (d) (3). The defendants argue that the delay
in filing the detainer by the Commonwealth should result in the
dismissal of the charges under Mass. R. Crim. P. 36 (d) (3), 378
Mass. 909 (1979). The IAD does not govern when a detainer
should be filed against a prisoner. Rather it deals with the
proper resolution of detainers once they are filed. See St.
1965, c. 892, § 1, art. I. The duty to file detainers for
defendants incarcerated outside the Commonwealth is explained in
rule 36 (d) (3). The rule requires that a prosecutor diligently
seek to file a detainer. Id. If the prosecutor has delayed
unreasonably, the defendant must show actual prejudice from the
failure to file a detainer in order for the charges to be
dismissed with prejudice. See Commonwealth v. Roman, 470 Mass.
85, 95 (2014) (requiring showing of actual prejudice under rule
36 [c]); Commonwealth v. Ferreira, 26 Mass. App. Ct. 67, 69-71
(1988) (declining to dismiss absent showing of prejudice under
rule 36 [d]). The defendants argue that this court should adopt
31
the constitutional rule of presumptive prejudice in analyzing
the failure of prosecutors to timely file a detainer. We
decline to do so. The defendants have not demonstrated any
actual prejudice arising from the delay in filing the detainer.10
We therefore decline to dismiss the charges pursuant to rule 36.
4. Conclusion. For the aforementioned reasons, we affirm
the denial of Timi's motion to dismiss and the allowance of
Nickoyan's.
So ordered.
10
Timi additionally argues that this court should consider
dismissal under Mass. R. Crim. P. 36 (c), 378 Mass. 909 (1979).
Such an analysis also requires a showing of particular
prejudice. See Commonwealth v. Roman, 470 Mass. 85, 95 (2014).
We accordingly decline to dismiss the charges against Timi
because of a violation of rule 36 (c).