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SJC-12428
SJC-12433
COMMONWEALTH vs. KEVIN GRAHAM, JR.
(and five companion cases1).
Suffolk. April 2, 2018. - September 13, 2018.
Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Constitutional Law, Speedy trial. Practice, Criminal, Speedy
trial, Dismissal. Witness, Unavailability. Evidence,
Failure to prosecute.
Indictments found and returned in the Superior Court
Department on June 10, 2016.
Motions to dismiss were heard by Douglas H. Wilkins, J.
The Supreme Judicial Court granted applications for direct
appellate review.
Sarah Montgomery Lewis, Assistant District Attorney (Masai-
Maliek King, Assistant District Attorney, also present) for the
Commonwealth.
Patrick Levin, Committee for Public Counsel Services, for
Kevin Graham, Jr.
Claudia Leis Bolgen for Ellis Golden.
1 Two against Kevin Graham, Jr., and three against Ellis
Golden.
2
William M. Jay & Gerard J. Cedrone, of New York, & Chauncey
B. Wood & Kevin P. Martin, for Massachusetts Association of
Criminal Defense Lawyers, amicus curiae, submitted a brief.
GANTS, C.J. Rule 36 of the Massachusetts Rules of Criminal
Procedure, as amended, 422 Mass. 1503 (1996) (rule 36), provides
that, if a criminal defendant is not tried "within twelve
months" after arraignment, "he shall be entitled upon motion to
a dismissal of the charges." Mass. R. Crim. P. 36 (b) (1) (C).
A defendant may establish a prima facie violation of rule 36 by
demonstrating that more than twelve months have elapsed between
arraignment and trial. See Commonwealth v. Denehy, 466 Mass.
723, 729 (2014). The burden then shifts to the Commonwealth to
justify the delay, either by showing that it falls within one of
the "excluded periods" enumerated under rule 36 (b) (2) or by
showing that "the defendant acquiesced in, was responsible for,
or benefited from the delay." Commonwealth v. Spaulding, 411
Mass. 503, 504 (1992). "A failure to object to a continuance or
other delay constitutes acquiescence." Commonwealth v. Tanner,
417 Mass. 1, 3 (1994).
The defendants in these companion cases, Kevin Graham, Jr.,
and Ellis Golden, were indicted for murder in the first degree.
At arraignment, a presumptive trial date was set for June 12,
2017. Thereafter, the parties also scheduled various pretrial
events, such as motion hearings and status conferences, but the
3
presumptive trial date did not change, and the trial was never
continued. On June 12, the Commonwealth was not ready for trial
because of the unavailability of an essential out-of-State
witness. The Commonwealth moved to continue the trial so that
it would have more time to secure the witness's appearance at
trial. The judge denied the motion to continue, finding that
the Commonwealth had failed to exercise due diligence in
securing the witness's appearance, but agreed to empanel a jury
and commence trial one week later if the Commonwealth were able
to produce the witness. The Commonwealth was unable to do so.
The defendants subsequently moved to dismiss, as more than
one year had elapsed since their arraignments. The Commonwealth
opposed the motions, arguing that much of that time should be
excluded from the rule 36 calculation, because the defendants
had failed to object when the various pretrial events were
scheduled and, therefore, had acquiesced in the delay. The
judge allowed the motions to dismiss with prejudice on two
separate grounds. He concluded that the defendants' right to a
speedy trial under rule 36 had been violated, because the
defendants could not have acquiesced in any delay where the
presumptive trial date never changed. He also concluded that
the defendants were entitled to dismissals for the
Commonwealth's failure to prosecute.
4
We vacate the dismissals and remand the cases for trial.
We conclude that the judge effectively continued the trial for
one week and that, because an essential witness resisted
appearing at trial, this period should be excluded under rule
36 (b) (2) (B) or (F), placing the Commonwealth within the time
limits of rule 36. We also conclude that the judge abused his
discretion in dismissing the indictments for failure to
prosecute where the Commonwealth's lack of diligence in
producing the witness did not rise to the level that would
warrant dismissal, especially where the indictments are for
murder, where barely one year had passed since the defendants'
arraignments, and where the trial had been continued for only
one week.
We also hold that time can be excluded under rule 36 based
on a defendant's acquiescence only where the defendant has
agreed to or failed to object to a continuance or other delay,
and that the scheduling of an event alone does not constitute
delay. Thus, a defendant need not object every time an event is
scheduled in order to preserve his or her rights under rule 36.
We further hold that, where the defendant has acquiesced, a
5
delay can be excluded under rule 36 even where it does not
affect the presumptive trial date.2
Background. We summarize the facts as found by the motion
judge, supplemented with uncontroverted evidence that was
implicitly credited by the judge and is consistent with his
ultimate findings. See Commonwealth v. Jones-Pannell, 472 Mass.
429, 431 (2015). We also summarize the prior proceedings, as
recorded in the docket and the clerk's minutes. See
Commonwealth v. Roman, 470 Mass. 85, 93 (2014) ("For purposes of
a rule 36 calculation . . . , the docket and the clerk's log are
prima facie evidence of the facts recorded therein").
In the early morning hours of August 12, 2004, Thomas
Hawkins (victim) was shot and killed, and his wallet stolen.
The police recovered the victim's wallet from a nearby school
yard later that day; according to the Commonwealth, the wallet
was empty, apart from some personal papers.
The police investigation was unable to identify any
material leads in the case until December, 2006, when Juan
Garcia offered to provide the police with information about the
killing in return for consideration in his pending narcotics
case. No agreement was reached at that time with Garcia, and he
was subsequently tried and convicted.
2 We acknowledge the amicus brief submitted by the
Massachusetts Association of Criminal Defense Lawyers.
6
However, in 2007 Garcia met with the police again and
agreed to testify before a grand jury. In his grand jury
testimony, Garcia stated that, at the time of the killing, he
heard gunshots and observed two men -- whom he knew and
identified as the defendants -- fleeing from the area where the
victim's body was found. He also testified that he saw the
defendants passing a wallet between themselves, and that Graham
was holding a firearm. Garcia told the grand jury that he was
cooperating with the Commonwealth in exchange for its support of
his motion to revise and revoke the sentence he was serving in
his narcotics case. However, no indictments were returned by
that grand jury against the defendants, and the Commonwealth
apparently did not provide Garcia with the assistance he
anticipated.
In 2015, another grand jury was convened to investigate the
killing. Because Garcia was then living in Florida, the
Commonwealth read his prior grand jury testimony into the record
rather than call him to testify. On June 10, 2016, the grand
jury indicted the defendants for murder in the first degree, as
well as armed robbery and unlawful possession of a firearm.
7
The Commonwealth's case rested heavily on the testimony of
Garcia, the sole identification witness.3 The Commonwealth had
no forensic evidence identifying either defendant as the
perpetrator of the crimes.
Golden was arraigned on June 20, 2016, and Graham on June
22, 2016. Pursuant to Superior Court Standing Order 2-86, all
criminal cases in the Superior Court are required to be assigned
to a "case track" at arraignment, thereby establishing a
presumptive timeline for disposition of the case. See Superior
Court Standing Order 2-86, Part III (2009). The defendants'
cases were designated as "C" track cases, with the following
presumptive schedule: a pretrial conference on July 14, 2016; a
first pretrial hearing on December 13, 2016; a final pretrial
hearing on June 1, 2017; and a presumptive trial date of June
12, 2017.4
The pretrial conference and first pretrial hearing were
held as scheduled. On May 11, 2017, the Commonwealth filed its
first motion to continue the presumptive trial date, stating
3 According to the Commonwealth, two other individuals
confirmed to the police that Garcia was where he said he was at
the time of the shooting, but neither offered any information
regarding the identities of the persons involved in the killing.
4 Cases are assigned to tracks "A", "B," or "C" based on the
offense charged in the indictment, and on consideration of any
extenuating or special circumstances raised by the parties.
Murder cases are presumptively assigned to track "C." Superior
Court Standing Order 2-86, Part III (2009).
8
that it needed more time to test deoxyribonucleic acid (DNA)
evidence found in the victim's shorts. The motion was denied.
The final pretrial hearing was held as scheduled, on June
1, 2017, and the presumptive trial date of June 12 was confirmed
as the actual trial date. On June 8, the Commonwealth informed
the court room clerk that it was unable to proceed to trial
because it could not secure Garcia's attendance. At a hearing
on June 9, the Commonwealth stated that it would file a motion
to continue, which it did on June 12, the trial date.
In its motion to continue, the Commonwealth made the
following factual representations: Although members of the
Boston police department had been "in regular contact" with
Garcia since 2015, their last communication with Garcia had been
in April, 2017. Once the Commonwealth's first motion to
continue was denied on May 11, 2017, the police attempted later
that month to contact Garcia to secure his attendance at trial.
After several unsuccessful attempts to communicate with Garcia
by telephone, the police decided to send an officer to Florida
on June 7, but the officer was unable to locate Garcia. On the
afternoon of June 8, the officer received a telephone call from
Garcia, who, in "a curse laden tirade," accused the officer of
9
going to his workplace and of "harassing" his family members.5
Garcia then told the officer that he did not "want to be
bothered any longer regarding these matters."6
After a nonevidentiary hearing, the judge denied the motion
to continue. The judge found that the Commonwealth had failed,
"despite clear warning signs," to compel Garcia's attendance
through interstate process and that it had therefore failed to
exercise due diligence in producing a material witness.
However, although he denied the motion to continue, the judge
scheduled a "status conference" for June 19, and declared that
he would empanel a jury and commence trial on that date if the
Commonwealth were "ready to go."
Following the hearing on June 12, the Commonwealth
contacted a Florida State Attorney's office in an attempt to
effectuate the interstate process that the judge had approved.
An investigator for that office went to Garcia's address on June
15 but was unable to serve him; the investigator said he spoke
5 The Commonwealth maintains that the police officer did not
go to Garcia's workplace. The Commonwealth has represented
that, in attempting to locate Garcia, the officer told persons
associated with Garcia only that he was "a friend of his from
Boston."
6 On June 16, 2017, the prosecutor submitted an affidavit
that reiterated these factual representations. The judge did
not make any factual findings whether these representations were
true but found that he did not need to, because he would deny
the motion even were he to accept them as true.
10
with someone who indicated that Garcia lived there but was not
there at the time. On June 15, Boston police received a
telephone call from Garcia, who said, "Leave me the fuck alone;
fuck you," and then hung up the telephone.
On June 19, the prosecutor informed the judge that the
Commonwealth was not ready for trial because it was still
searching for Garcia. The prosecutor made an oral motion to
continue, which the judge denied.
On June 22, 2017, 367 days after his arraignment, Golden
filed a motion to dismiss for violation of rule 36 and for
failure to prosecute. On June 26, 369 days after his
arraignment, Graham filed a similar motion. In opposing these
motions, the Commonwealth made two arguments. First, the
Commonwealth argued that it had exercised due diligence in
attempting to secure Garcia's attendance at trial, noting that
Garcia had been "actively avoiding" being located and served.
Second, the Commonwealth argued that almost all of the time that
had elapsed since the defendants' arraignments should be
excluded under rule 36, because the defendants, in failing to
object to the scheduling of various pretrial events, had
acquiesced in the delay. With respect to this second argument,
the Commonwealth rested solely on "waiver and acquiescence"; it
11
did not argue that any time should be excluded because it fell
within an "excluded period" under rule 36 (b) (2).7
The judge allowed the rule 36 motion, dismissing the
indictments against both defendants with prejudice. The judge
concluded that, because there had been no change to the
presumptive trial date, there was no time that could be
excluded, whether under rule 36 (b) (2) or based on the
defendants' acquiescence.8 The judge also allowed the
defendants' motions to dismiss for failure to prosecute. He
declared that the "crucial" factor in this decision was the
Commonwealth's failure to exercise due diligence in securing
Garcia's attendance at trial, combined with what he
characterized as the unlikelihood that the Commonwealth "will
7 At the hearing on the defendants' motions to dismiss, the
judge asked the prosecutor, "Are there any specifically
enumerated events in [rule 36 (b) (2)] that you are relying on,
or is it just waiver and acquiescence?" to which the prosecutor
replied, "It's waiver and acquiescence, Your Honor." Moreover,
in its oppositions to the defendants' motions to dismiss, the
Commonwealth argued only that time should be excluded based on
"the defendant's agreement to, acquiescence in, or benefit from
the delay." In its charts accompanying its oppositions, where
the Commonwealth detailed its calculations of time under rule
36, it made no mention of any excluded periods under rule
36 (b) (2).
8 The judge rested his dismissal for lack of a speedy trial
solely on rule 36 grounds; the judge did not find a
constitutional speedy trial violation, and the defendants make
no constitutional claim. If the defendants had made such a
claim, we would be obliged to consider it even though we
conclude that there was no rule 36 violation. See Commonwealth
v. Dirico, 480 Mass. , (2018).
12
improve its lackluster efforts to date or exercise due diligence
to produce an increasingly hostile witness." He also declared
that the dismissals for failure to prosecute would have been
without prejudice "[b]ut for the rule 36 violation."
The Commonwealth filed a notice of appeal in these cases,
and we granted the defendants' applications for direct appellate
review.
Discussion. 1. Rule 36. Rule 36 is a "[case] management
tool, designed to assist the trial courts in administering their
dockets." Barry v. Commonwealth, 390 Mass. 285, 295-296 (1983),
quoting Reporters' Notes to Mass. R. Crim. P. 36, Mass. Ann.
Laws, Rules of Criminal Procedure, at 525 (1979). It also
"creates a means through which [criminal] defendants who desire
a speedy trial can secure one." Barry, supra at 296. Under
rule 36, "a criminal defendant who is not brought to trial
within one year of the date of arraignment is presumptively
entitled to dismissal of the charges unless the Commonwealth
justifies the delay." Spaulding, 411 Mass. at 504.9 See Mass.
R. Crim. P. 36 (b) (1) (C), (D). Dismissal under rule 36 is
9 Rule 36 provides that "a defendant shall be tried within
twelve months after the return day in the court in which the
case is awaiting trial." Mass. R. Crim. P. 36 (b) (1) (C), as
amended, 422 Mass. 1503 (1996). Where the defendant is under
arrest, as here, the return day is the date of arraignment. See
Mass. R. Crim. P. 2 (b) (15), as amended, 397 Mass. 1226 (1986).
See also Commonwealth v. Mattos, 404 Mass. 672, 674 (1989).
13
with prejudice. Commonwealth v. Lauria, 411 Mass. 63, 71
(1991).
Here, the defendants have established a prima facie
violation of rule 36 because they were not brought to trial
within twelve months of arraignment. The burden therefore
shifts to the Commonwealth to justify the delay. Denehy, 466
Mass. at 729. In Golden's case, the period between his
arraignment on June 20, 2016, and the filing of his motion to
dismiss on June 22, 2017, was 367 days; subtracting twelve
months (i.e., 365 days) from this period leaves only two days
that the Commonwealth must justify. In Graham's case, the
period between his arraignment on June 22, 2016, and the filing
of his motion to dismiss on June 26, 2017, was 369 days, leaving
only four days for the Commonwealth to justify.10,11
There are two separate ways in which the Commonwealth can
meet its burden of justifying a delay, thereby excluding it from
the calculation of time under rule 36.
10The filing of a motion to dismiss under rule 36 tolls the
running of the time in which the defendant must be tried. Barry
v. Commonwealth, 390 Mass. 285, 294 (1983).
11In making our calculations, we adhere to rule 36 (b) (3),
which provides: "In computing any time limit other than an
excluded period, the day of the act or event which causes a
designated period of time to begin to run shall not be included.
Computation of an excluded period shall include both the first
and the last day of the excludable act or event." However,
"[i]f there are excludable periods of delay which overlap, a day
is excluded only once." Barry, 390 Mass. at 292.
14
a. Excluded periods under rule 36 (b) (2). The first way
to justify a delay is to show that the delay falls within one of
the "excluded periods" specifically enumerated under rule
36 (b) (2). Such periods include, for example, "delay[s]
resulting from interlocutory appeals," "delay[s] resulting from
hearings on pretrial motions," and "delay[s] . . . during which
any proceeding concerning the defendant is actually under
advisement." Mass. R. Crim. P. 36 (b) (2) (A) (iv), (v), (vii).
The judge declared that no time could be excluded under
rule 36 (b) (2) unless the act or event triggering the exclusion
resulted in delay of the presumptive trial date. This was
error. As we have consistently recognized, "once [the
Commonwealth] establishes that an act or event triggers an
excludable period of time [under rule 36 (b) (2)], the exclusion
of the period is automatic." Barry, 390 Mass. at 292.12 See
Denehy, 466 Mass. at 729 n.6; Commonwealth v. Farris, 390 Mass.
300, 304 n.3 (1983). Because there are a "multitude of factors
[that] might influence the date a trial commences," the
12 As stated in the Reporter's Notes to rule 36 (b) (2):
"[T]he court is given the discretion to consider and determine
whether a proffered explanation for delay is a valid excluded
period. But once it is determined that a period of delay is
within the contemplation of [rule 36 (b) (2)], that period shall
be excluded from computation of the twelve-month limit."
Reporter's Notes to Mass. R. Crim. P. 36 (b) (2), Massachusetts
Rules of Court, Rules of Criminal Procedure, at 210 (Thomson
Reuters 2018).
15
Commonwealth need not establish whether that act or event had
any effect on the trial date -- or, for that matter, the
presumptive trial date. Barry, supra at 292-293. Rather, the
exclusions identified in rule 36 (b) (2) are premised on the
belief that certain acts or events are "certain to result in
delay," or are "beyond [the Commonwealth's] control," such that
any time that elapses as a result of those acts or events should
not be counted against the Commonwealth. Reporter's Notes to
Mass. R. Crim. P. 36 (b) (2), Massachusetts Rules of Court,
Rules of Criminal Procedure, at 210-211 (Thomson Reuters 2018)
("The rationale underlying [rule 36 (b) (2)] is that the
Commonwealth should not be penalized when the defendant elects
to avail himself of those procedures"). The automatic exclusion
of these time periods "allows all parties to calculate with
reasonable certainty the date within which the defendant must be
tried." Barry, supra at 292. If we were to exclude time under
rule 36 (b) (2) only where an act or event is shown to have
resulted in an actual delay of the presumptive trial date, the
parties to a criminal case might not be able to calculate
whether the allowable 365 days had elapsed until it was too late
to avoid dismissal of the case.13
13Keeping a contemporaneous calculation of excludable delay
under rule 36 (b) (2) is also important where a defendant, after
a dangerousness hearing, is ordered to be held in pretrial
16
We reiterate, however, that the burden is on the
Commonwealth to demonstrate that a delay should be excluded
under rule 36 (b) (2). Denehy, 466 Mass. at 729. Here, the
judge concluded that the Commonwealth had disclaimed reliance on
rule 36 (b) (2). We agree that, because the Commonwealth did
not specifically argue for exclusions under rule 36 (b) (2) when
it opposed the defendants' motions to dismiss, see note 7,
supra, most of these exclusions have been waived. The
Commonwealth's waiver is of consequence because, for example,
the Commonwealth could have sought to exclude the time required
to hear and rule on the defendants' pretrial motions -- which,
based on the record, could have been as much as thirty-two days
in Golden's case14 and forty-seven days in Graham's case15 --
detention pending trial under G. L. c. 276, § 58A. Under
§ 58A (3), a person so detained "shall be brought to a trial as
soon as reasonably possible, but in absence of good cause, the
person so held shall not be detained for a period exceeding 120
days excluding any period of delay as defined in [rule
36 (b) (2)]."
14An excludable delay under rule 36 (b) (2) (A) (v) is
calculated as the time between "the date on which the request
for hearing on the pretrial motion is filed, or, if no such
request is filed, from the date the hearing is ordered, until
the conclusion of the hearing." See Reporter's Notes to Mass.
R. Crim. P. 36 (b) (2) (A) (v), supra at 211.
The docket indicates that Golden filed a motion to dismiss
on October 25, 2016, but does not indicate whether a request for
hearing was filed. At the first pretrial hearing on December
13, 2016, a hearing on Golden's motion was scheduled for January
11, 2017. The hearing was held as scheduled, and the motion was
17
denied on January 13, 2017. Assuming that there was no request
for hearing and that the hearing was ordered at the first
pretrial hearing, the Commonwealth could have sought to exclude
the thirty days between December 13, 2016, and the motion
hearing on January 11, 2017, under rule 36 (b) (2) (A) (v). The
Commonwealth could have also sought to exclude the two days
between the hearing on January 11, 2017, and the ruling on
January 13, 2017, when the matter was "under advisement," under
rule 36 (b) (2) (A) (vii).
15 The docket indicates that Graham filed a motion under
Mass. R. Crim. P. 14, as appearing in 442 Mass. 1518 (2004)
(rule 14), for updated pretrial discovery on February 16, 2017,
and that the motion was heard on March 23, 2017, but does not
indicate when the hearing was requested or ordered. Graham
filed a second rule 14 motion on April 25, 2017; that same day,
a motion hearing was scheduled for May 2, 2017. That hearing
was later rescheduled to May 11, 2017, when both motions were
allowed. As to the first motion, the Commonwealth could have
sought to exclude thirty out of the fifty days between the
motion hearing on March 23, 2017, and the ruling on May 11,
2017, when the matter was "under advisement," under rule
36 (b) (2) (A) (vii). As to the second motion, the Commonwealth
could have sought to exclude the seventeen days between when the
hearing was scheduled on April 25, 2017, and when the hearing
was held on May 11, 2017, under rule 36 (b) (2) (A) (v).
Having said that, because Graham's rule 14 motions sought
discovery that was mandatory under rule 14 (a) (1) (A),
including Garcia's address, it is far from clear that the
Commonwealth could have successfully excluded this time. In
Commonwealth v. Taylor, 469 Mass. 516, 528 (2014), we declared
that where the Commonwealth fails timely to produce mandatory
discovery and the defendant moves for sanctions or to compel
under rule 14 (a) (1) (C), "the time it takes to resolve the
rule 14 (a) (1) (C) motion shall not be excluded automatically
[under rule 36 (b) (2)] from the ultimate speedy trial
calculation." Instead, "[the] motion judge is responsible for
determining whether any delay occasioned by the resolution of
that motion should, in fact, toll the speedy trial clock" by
assessing "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.'" Id., quoting Mass. R.
Crim. P. 36 (b) (2) (F). Here, Graham did not specifically
18
under rule 36 (b) (2) (A) (v) and (vii). Exclusion of these
time periods would have placed the Commonwealth well within the
time limits of rule 36, but because the Commonwealth waived
these exclusions before the motion judge, it cannot now seek to
exclude that time.
However, there are some exclusions under rule 36 (b) (2)
that the Commonwealth cannot be held to have waived, because of
the unusual posture of these cases and because the Commonwealth
did in substance make arguments in support of these exclusions.
Specifically, we conclude that the time period between the trial
date on June 12, 2017, and the "status conference" on June 19,
2017, should be excluded under either of two exclusions
contained in rule 36 (b) (2).
frame his motions as motions for sanctions or to compel under
rule 14 (a) (1) (C), as he should have to ensure that the time
would not be excluded under rule 36 (b) (2). See Taylor, supra
at 527 ("A defendant yet to receive all mandatory discovery must
. . . 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]"). Perhaps for this
reason, there is no indication in the record that the motion
judge made any determination whether the time taken to resolve
Graham's rule 14 motions should be excluded under rule
36 (b) (2). Although a judge might still find that Graham's
rule 14 motions were in substance motions to compel mandatory
discovery under rule 14 (a) (1) (C), and that the resulting
delay should not be excluded under rule 36 (b) (2), the
Commonwealth could have argued that Graham did not "avail
himself of the remedies outlined in rule 14," as required under
Taylor, supra, and therefore that the clock should have been
tolled.
19
The first such exclusion is found in rule 36 (b) (2) (B),
which provides that "[a]ny period of delay resulting from the
absence or unavailability of the defendant or an essential
witness" shall be excluded from the rule 36 calculation. Rule
36 (b) (2) (B) states further:
"A defendant or an essential witness shall be considered
absent when his whereabouts are unknown and he is
attempting to avoid apprehension or prosecution or his
whereabouts cannot be determined by due diligence. A
defendant or an essential witness shall be considered
unavailable whenever his whereabouts are known but his
presence for trial cannot be obtained by due diligence or
he resists appearing at or being returned for trial."
Importantly, an exclusion under rule 36 (b) (2) (B) is
"established by a party on motion for a continuance."
Reporter's Notes to Mass. R. Crim. P. 36 (b) (2) (B), supra at
211.
In filing its motion to continue on June 12, 2017, the
Commonwealth vigorously argued that the trial date should be
continued because Garcia -- a witness who was essential to the
Commonwealth's case -- was unavailable. The Commonwealth
specifically sought a continuance so that it would have
additional time to effectuate interstate process and secure
Garcia's appearance at trial. The judge denied the motion to
continue the June 12 trial date, but also declined to empanel a
jury on that date or to dismiss the cases. Instead, the judge
gave the Commonwealth another week to secure Garcia's
20
appearance, setting a "status conference" for June 19, and
informing the prosecutor that if the Commonwealth was "ready to
go" on that date, he would empanel a jury. The judge declined
to characterize this one-week period between June 12 and June 19
as a continuance, specifically declaring, "I've denied [the
Commonwealth's] motion for a continuance." He instead
characterized it as a "wait and see" period. We fail to see the
distinction. We conclude that, for all practical purposes, the
judge granted the Commonwealth a one-week continuance, with
trial to begin on June 19 if the Commonwealth could produce
Garcia.
Thus, the strange posture of these cases is that, although
the judge denied the Commonwealth's motion to continue, he did
in effect allow the Commonwealth additional time to secure
Garcia's appearance. If the judge had called this one-week
period what it was -- a continuance -- then the Commonwealth
could have sought to exclude that period under rule
36 (b) (2) (B), as a "delay resulting from the . . .
unavailability of . . . an essential witness." There is no
doubt that Garcia is an essential witness in these cases.16 He
was also unavailable. As earlier stated, an essential witness
16In his order allowing the defendants' motions to dismiss,
the judge stated, "The Court has no difficulty concluding that
. . . Garcia is a necessary and material witness."
21
whose whereabouts are known is considered "unavailable" under
rule 36 (b) (2) (B) "whenever . . . his presence for trial
cannot be obtained by due diligence or he resists appearing at
or being returned for trial" (emphasis added). In denying the
Commonwealth's motion to continue, the judge concluded that the
Commonwealth had failed to exercise due diligence in securing
Garcia's appearance at trial. However, we need not consider
whether this was an abuse of discretion because there is
undisputed evidence in the record indicating that Garcia
resisted appearing at trial, which provides an adequate
independent ground for excluding time under rule 36 (b) (2) (B).
The period between June 12 and June 19 is therefore excludable
under rule 36 (b) (2) (B).
Alternatively, the period between June 12 and June 19 could
also fall under rule 36 (b) (2) (F), which excludes "[a]ny
period of delay resulting from a continuance granted by a judge
. . . , if the judge granted the continuance on the basis of his
findings that the ends of justice served by taking such action
outweighed the best interests of the public and the defendant in
a speedy trial."17 In filing its motion to continue on June 12,
17A period of delay resulting from a continuance may be
excluded under rule 36 (b) (2) (F) only if "the judge sets forth
in the record of the case, either orally or in writing, his
reasons for finding that the ends of justice served by the
22
the Commonwealth argued that a continuance "[would] not impact
the defendants' rights to a speedy trial." And again, although
the judge denied that motion to continue, he did allow the
Commonwealth another week to produce Garcia. In doing so, the
judge recognized that, under Mass. R. Crim. P. 10, 378 Mass. 861
(1979) (rule 10), one of the factors that must be considered
when determining whether to grant a continuance is "[w]hether
the failure to grant a continuance . . . would be likely to make
a continuation of the proceeding impossible, or result in a
miscarriage of justice." Mass. R. Crim. P. 10 (a) (2) (A).
According to the judge, it was this factor that "led [him] not
to dismiss the case outright on June 12, even as [he] denied
[the Commonwealth's motion to continue]." The judge decided to
allow the Commonwealth another week "in an attempt to
accommodate the interests of all parties," and because he
"expected no prejudice to anyone, if, on June 19, [the parties]
proceeded to trial on that same date." Thus, although the judge
did not characterize it as a continuance, that additional week
was, in effect, "a continuance granted . . . [based on] findings
that the ends of justice served . . . outweighed the best
interests of the public and the defendant in a speedy trial,"
and is excludable under rule 36 (b) (2) (F). See Commonwealth
granting of the continuance outweigh the best interests of the
public and the defendant in a speedy trial."
23
v. Davis, 91 Mass. App. Ct. 631, 637 n.11 (2017) (rule
36 [b] [2] [F] finding "need not be explicit, but may be implied
from the record").
We conclude that, whether based on Garcia's unavailability
under rule 36 (b) (2) (B) or on a continuance under rule
36 (b) (2) (F), the period between June 12 and June 19 should be
excluded. Although the Commonwealth did not specifically seek
to exclude time under these provisions, this was because of the
unusual posture that the cases were in: the Commonwealth could
not be expected to argue for an exclusion based on a continuance
where the judge had specifically stated that he had granted no
such continuance.18 Moreover, the Commonwealth did in substance
make arguments in support of these exclusions when it filed its
motion to continue, contending that it was entitled to a
continuance because an essential witness was unavailable, and
that a continuance would serve the ends of justice because it
would not violate the defendants' right to a speedy trial.
Where the Commonwealth could not have reasonably been expected
18 Indeed, at the hearing on June 12, 2017, the prosecutor
expressed confusion over the fact that, although the judge had
denied the motion to continue trial, the judge was nevertheless
giving the Commonwealth until June 19 to produce Garcia. When
the judge reiterated that he had denied the motion and was "not
continuing anything," the prosecutor attempted to clarify the
nature of the one-week period between June 12 and June 19,
stating: "I think it matters what the Court calls it for the
record, Judge." To this the judge responded, "We'll call it a
status conference, but you're going to impanel if you're ready."
24
to argue for these exclusions, but nevertheless did establish
the grounds for applying them, we conclude that it cannot be
held to have waived those exclusions.
Because the eight days between June 12 and June 19 are
excluded, the delays here -- two days in Golden's case and four
days in Graham's case -- have been justified. Although this
alone requires us to vacate the dismissals under rule 36, we
also consider whether there are other excludable delays that may
affect the amount of time remaining before the cases must be
tried on remand or dismissed under rule 36.
b. Exclusions based on defendants' acquiescence. The
second way that the Commonwealth can justify a delay is provided
not by any provision in rule 36 but by the common law. Under
the common law, a defendant is not entitled to dismissal if he
or she acquiesced in, was responsible for, or benefited from the
delay. See Barry, 390 Mass. at 295. A defendant is held to
have acquiesced in a delay if he or she "agreed to a continuance
. . . or has not entered an objection to delay." Id. at 298.
Thus, in several cases we have excluded time under rule 36 based
on the defendant's failure to object to a delay. See, e.g.,
Roman, 470 Mass. at 93; Denehy, 466 Mass. at 731-732; Lauria,
411 Mass. at 68-69; Farris, 390 Mass. at 305-306. In doing so,
we have emphasized that rule 36 imposes obligations on all
parties, and that it is the obligation of criminal defendants to
25
"press their case through the criminal justice system." Lauria,
supra at 68, quoting Barry, supra at 297. We have required
defendants to object to delays in order to preserve their rights
under rule 36 because we recognize that otherwise, "the public
interest . . . [may] be thwarted by those defense counsel who
decide that delay is the best defense tactic." Barry, supra.
The determination whether a defendant acquiesced in delay
is often retrospective, and therefore requires "a thorough
examination of the record." Reporter's Notes to Mass. R. Crim.
P. 36 (b) (2), supra at 210. We note that, in order to avoid
these difficult retrospective determinations, judges should
where possible make contemporaneous findings whether time should
be excluded under rule 36. In particular, whenever a judge
grants a continuance -- whether it be a continuance of the trial
date or a continuance of some other scheduled event, such as a
pretrial conference or hearing -- the judge should also make a
finding whether the continuance serves the ends of justice, such
that the resulting delay should be excluded under rule
36 (b) (2) (F). Even where the parties have not requested such
a finding, a judge should nevertheless make that finding sua
sponte, in order to make clear whether the delay resulting from
a continuance can be excluded under rule 36 (b) (2) (F). Such a
finding is not burdensome for a judge to make or for a clerk to
record; the judge need only find, orally on the record or in
26
writing, that the ends of justice served by granting the
continuance outweigh the best interests of the public and the
defendant in a speedy trial, see rule 36 (b) (2) (F), and the
clerk need only make a notation of "ends of justice" in
recording the continuance.
But in cases where the parties have not requested such a
finding, and where the judge has failed to make one, it becomes
necessary to consider retrospectively whether that delay can be
excluded based on the defendant's acquiescence. Here, the
Commonwealth contends that almost all of the time that has
elapsed in both cases should be excluded based on the
defendants' acquiescence, because every time a pretrial event
was scheduled, the defendants agreed to the scheduled date or
failed to object. For example, at the pretrial conference on
July 14, 2016, the parties agreed to schedule a status
conference for September 29, 2016, which was noted in the docket
with the following entry: "Case continued by agreement to
9/26/16 re: Status Conference." The Commonwealth contends that,
because the defendants agreed to this date, they "agree[d] to
[a] continuance," and therefore the seventy-eight days between
the pretrial conference on July 14 and the status conference on
September 29 must be excluded. Applying this logic to the
entire pretrial period, the Commonwealth contends that, every
time the defendants agreed to the scheduling of another event,
27
the time leading up to that event must be excluded based on the
defendants' acquiescence. By the Commonwealth's calculation,
this would mean that a total of 330 days should be excluded, in
both cases, out of the 367 days since Golden's arraignment and
the 369 days since Graham's arraignment.
In response, the defendants argue (and the judge agreed)
that there is no time that can be excluded based on their
acquiescence, because the presumptive trial date of June 12,
2017, was never postponed. They contend that any delay under
rule 36 must be measured in terms of impact on the presumptive
trial date. Thus, where the presumptive trial date remained
unchanged since arraignment, they could not have been expected
to object to any delay, because there was no delay for them to
object to. Under this interpretation, the clock would not be
tolled under rule 36 even if, for example, the defendant agrees
to the continuance of a scheduled event, such as a pretrial
hearing or conference.
In short, each side interprets rule 36 as working harsh
results upon the other. The Commonwealth interprets rule 36 to
mean that defendants must object every time an event is
scheduled, even if the objection is meritless, or else risk
having the time excluded based on their acquiescence. The
defendants interpret rule 36 to mean that the speedy trial clock
28
runs without pause against the Commonwealth unless the
presumptive trial date changes.
We reject both of these interpretations. The
Commonwealth's interpretation would encourage defense counsel in
a criminal case to be obstinate rather than flexible, combative
rather than cooperative. It would invite defense counsel to
make baseless objections whenever an event is scheduled for the
first time. It also mischaracterizes the clerk's language in
the docket entries -- stating that the case has been "continued
to" various dates -- as evidence of "continuances," when all
that it reflects is the next scheduled event in the case.
Meanwhile, the defendants' interpretation fails to
recognize that a criminal case has various stages (e.g.,
pretrial conferences for the exchange of discovery and notice of
certain defenses, motions to suppress, the final pretrial
hearing to resolve motions in limine and other matters before
trial, and the trial itself), and that delay arising in any of
these stages is likely to result in delay in the subsequent
stages. If there are no excludable delays under rule
36 (b) (2), and if the rule 36 clock cannot be tolled even where
the defendant acquiesces in delay during the various pretrial
stages, then in complex cases the presumptive trial date is
likely, as here, to be at or near the 365-day limit, leaving the
Commonwealth with little or no room for error to avoid dismissal
29
under rule 36 and little time to prepare for trial after the
pretrial stages are completed.
Our case law recognizes that preparing a case for trial is
a complex process, full of unexpected events and challenges, and
rejects any interpretation of rule 36 that would make parties
less likely to accommodate each other -- defendants because they
may risk losing their rights to a speedy trial and the
Commonwealth because it may risk running out of time. Our
precedents make clear that time can be excluded based on a
defendant's acquiescence if the defendant agreed to or otherwise
failed to object to "a continuance or other delay" (emphasis
added). Tanner, 417 Mass. at 3. This means that, if an event
is scheduled for a certain date, and the defendant assents or
fails to object when that event is continued or rescheduled to a
later date, then that time can be excluded based on the
defendant's acquiescence. For example, if a pretrial hearing
scheduled for March 1 is rescheduled by the parties' agreement
to March 8, then that eight-day delay may be excluded based on
the defendant's acquiescence. Or, if the Commonwealth
successfully moves to continue the trial date from August 1 to
August 22, without objection from the defendant, then that
twenty-two-day continuance can also be excluded based on the
defendant's acquiescence. See Commonwealth v. Williams, 475
Mass. 705, 715 (2016) (time excluded based on defendant's
30
acquiescence where defendant and Commonwealth agreed to continue
pretrial hearing date, to extend deadline for filing pretrial
motions, and to continue trial date); Commonwealth v. Taylor,
469 Mass. 516, 525 (2014) (time excluded based on defendant's
acquiescence where defendant agreed to reschedule presumptive
trial date).19 But where a defendant agrees for the first time
to schedule a previously unscheduled event, there is no
"continuance" or "delay" that can be excluded under rule 36. In
these cases, for example, when the defendants agreed to schedule
a status conference for September 29, 2016, they were not
agreeing to a continuance or delay, because this was the first
time a date had been set for that conference. Just because the
docket states that "[the] case [was] continued" does not mean
that there was a continuance to which the defendants were
required to object, unless an event was in fact continued from
an earlier date to a later date, or was not held as scheduled.
Contrary to the Commonwealth's suggestion, nothing in rule 36 or
our case law requires defendants to object every time another
event is scheduled. See Spaulding, 411 Mass. at 506 ("[W]e have
19Time can also be excluded under rule 36 based on a
defendant's acquiescence if the defendant allows an already
scheduled event to pass without objection. See, e.g.,
Commonwealth v. Spaulding, 411 Mass. 503, 507 (1992) (time
excluded under rule 36 where defendant allowed scheduled trial
date to pass without objection); Commonwealth v. Farris, 390
Mass. 300, 306 (1983) (same).
31
never held that rule 36 time does not begin to run until the
defendant first makes an objection").
This does not mean, however, that defendants are absolved
of their duty to "press their case through the criminal justice
system." Barry, 390 Mass. at 297. There are many events that
may constitute a "delay," potentially taking up time that may
otherwise be used to prepare for trial, even if the presumptive
trial date does not change. Although the more common of these
events, such as the resolution of pretrial motions, are
enumerated under rule 36 (b) (2), there are also various
unanticipated events that the parties may agree to work around.
For example, a pretrial hearing may need to be rescheduled if
the Commonwealth's attorney cannot attend because of an
unexpected family emergency, or a filing deadline may need to be
extended if defense counsel has an important deadline in another
case falling on the same date. Such delays may not have any
effect on the presumptive trial date, but if the defendant does
not object to them, they should not be counted against the
Commonwealth. Here, the judge erroneously focused only on
delays that "affect[], or potentially affect[]," the trial date,
even though we have never held that a continuance or delay must
have an effect on the trial date, presumptive or otherwise, in
order for it to be excluded under rule 36. Indeed, in several
cases we have excluded time where the defendant acquiesced in a
32
delay to an event other than the trial itself. See, e.g.,
Williams, 475 Mass. at 715 (continuance in pretrial hearing date
and extension of filing deadline); Roman, 470 Mass. at 93
(continuance in pretrial hearing date); Commonwealth v. Rodgers,
448 Mass. 538, 541 (2007) (extension of filing deadline).20
Having examined the record to determine whether any delay
here can be justified based on the defendants' acquiescence, we
conclude that much of the time that the Commonwealth claims is
excluded must instead be included. The Commonwealth contends
that the defendants acquiesced in delay on eight occasions when
they agreed to schedule a previously unscheduled pretrial
event,21 and on two other occasions when they failed to object to
20A defendant may also be found to have acquiesced in or
benefited from a delay where a judge proposes a date for the
next event and the defendant asks for that date to be postponed
to a later date. Where this happens, a judge might find that
the defendant has acquiesced in the delay between the proposed
date and the later date. But where this happens, it is
important that the judge make a contemporaneous finding of
acquiescence or benefit because, without such a contemporaneous
finding, the docket may simply reflect the scheduled date of
this next event.
21The Commonwealth claims that the defendants acquiesced in
delay when they agreed to schedule the following pretrial
events: (1) a status conference for September 29, 2016; (2) a
motion hearing for January 11, 2017; (3) a status conference for
February 16, 2017; (4) a motion hearing for March 23, 2017; (5)
a status conference for April 25, 2017; (6) a motion hearing for
May 2, 2017; (7) a motion hearing for June 6, 2017; and (8) a
hearing on June 9, 2017.
33
events that were already scheduled at arraignment.22 On none of
these occasions was there any "continuance or . . . delay" to
which the defendants could have objected. Tanner, 417 Mass. at
3. See Barry, 390 Mass. at 296 n.13 ("counsel need not object
where a procedure and timetable is established by the rules").23
However, the record does reveal two occasions on which the
defendants may have in fact agreed to a continuance or delay.
In Graham's case, a motion hearing that was scheduled for
January 11, 2017, appears to have been continued to February 16,
2017, by the parties' agreement. Meanwhile, in both cases, a
motion hearing that was scheduled for May 2, 2017, appears to
have been continued to May 11, 2017, although the docket does
not indicate whether this was by agreement. If the defendants
agreed to these continuances or failed to object to them, as the
22The Commonwealth claims that the defendants acquiesced in
delay when they failed to object to events that had already been
presumptively scheduled at arraignment: (1) the first pretrial
hearing on December 13, 2016; and (2) the final pretrial hearing
on June 1, 2017.
23In its opposition to the defendants' motions to dismiss,
the Commonwealth also argued that the seventeen days between
April 25, 2017, when Graham filed his second rule 14 motion, and
May 11, 2017, when the judge ruled on that motion, should be
excluded because Graham benefited from this delay. But where
Graham filed this motion because the Commonwealth had failed to
provide discovery that was mandatory under rule 14, see note 15,
supra, he cannot be held to have benefited from such delay. Cf.
Taylor, 469 Mass. at 527 ("[I]t makes little sense [to exclude
time under rule 36 (b) (2)] when a defendant moves to compel
production of discovery he indisputably is owed").
34
Commonwealth alleges, then these time periods -- thirty-seven
days for the first alleged continuance and ten days for the
second -- could be excluded based on the defendants'
acquiescence, placing the Commonwealth within the time limits of
rule 36. The docket does not provide us with sufficient
information to determine whether there was acquiescence in delay
on either of these occasions. Specifically, in Graham's case,
it is unclear whether the motion hearing that was scheduled for
January 11 was in fact continued, or whether it was simply
canceled, with the next event -- the status conference --
scheduled for February 16.24 And in both cases, it is unclear
whether the motion hearing scheduled for May 2 was continued to
24It is not clear why there was a "motion hearing"
scheduled for January 11, 2017, in Graham's case, because at
that time Graham had no pending motions. The hearing was
described in the docket as a "Hearing Re: Motion to Dismiss,"
which was likely a reference to a hearing in Golden's case,
scheduled for the same date, to hear Golden's motion to dismiss.
Golden's motion hearing was held as scheduled.
The docket entry for January 11, 2017, in Graham's case
states: "Motion Hearing scheduled for 01/11/2017 . . . has been
resulted as follows: . . . Rescheduled. Reason: Defense
Attorney failed to appear, Deft not in Court (in Lockup) Cont
[t]o 2/16/17 by agree, Hr re: Status conf." This could suggest
that, because there was no need for a motion hearing in Graham's
case, the parties agreed not to hold one, and agreed to schedule
their next event (i.e., a status conference) for February 16,
2017 -- in which case the time between January 11 and February
16 would not be considered a continuance.
35
May 11 by agreement or whether the defendants objected.25 The
judge made no findings on these issues, because he assumed,
incorrectly, that delay resulting from a continuance could not
be excluded unless it affected the presumptive trial date. On
remand, the judge may determine based on an expanded record
whether the defendants acquiesced in delay during the following
time periods: (1) between January 11, 2017, and February 16,
2017, in Graham's case; and (2) between May 2, 2017, and May 11,
2017, in both cases. If so, those time periods must be
excluded.26
2. Failure to prosecute. Having found that the dismissals
under rule 36 must be vacated, we turn to the judge's dismissal
of the indictments for failure to prosecute.
Even where dismissal is not required under rule 36, a judge
nevertheless retains the inherent authority to dismiss an
indictment for failure to prosecute. See Commonwealth v.
Jenkins, 431 Mass. 501, 504 (2000). Where such dismissal is
without prejudice, "the judge's action should be upheld in the
25The docket entry for May 2, 2017, simply states:
"[C]ontinued to 5/11/2017 . . . for motion hearing." The docket
elsewhere states that the hearing scheduled for May 2, 2017, was
"[r]escheduled."
26On appeal, the Commonwealth also claims that the judge's
interpretation of rule 36 violates the separation of powers.
Because we conclude that the judge's interpretation is
incorrect, and because we vacate the dismissals, we need not
address this argument.
36
absence of an abuse of discretion." Commonwealth v. Connelly,
418 Mass. 37, 38 (1994). But where such dismissal is with
prejudice, "there must be a showing of egregious misconduct or
at least a serious threat of prejudice." Id.
Here, the judge concluded that there was a violation of
rule 36, leaving him with no discretion but to dismiss with
prejudice. But the judge also concluded that, "[i]f the [r]ule
36 period has not expired, such that the Court [does have]
discretion [to dismiss], the Court . . . grants the [m]otions
[to dismiss] on the ground[s] of failure to prosecute these
cases." The judge further clarified that, "[b]ut for the [r]ule
36 violation, this dismissal would have been without prejudice."
Thus, because we have determined that there was no rule 36
violation in these cases, the dismissal based on failure to
prosecute must be deemed without prejudice. We therefore review
it for abuse of discretion.
Generally, "where a prosecutor is unprepared to present her
case due to the unexpected absence of a witness, a judge has
discretion to dismiss the case without prejudice." Commonwealth
v. Lucero, 450 Mass. 1032, 1033 (2008). However, that
discretion is not unlimited. "[A] judge's discretionary
decision constitutes an abuse of discretion where we conclude
the judge made 'a clear error of judgment in weighing' the
factors relevant to the decision, such that the decision falls
37
outside the range of reasonable alternatives" (citation
omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Here, the judge concluded that the cases should be
dismissed for failure to prosecute because the Commonwealth was
not ready for trial on the first scheduled trial date, June 12,
2017, and was still not ready for trial one week later, on June
19. In reaching this conclusion, the judge weighed the various
factors that a court must consider under rule 10 when
determining whether to grant a motion to continue. This was
appropriate, given that, where a judge is asked to rule on both
a motion to continue and a motion to dismiss without prejudice,
those decisions are in essence two sides of the same coin: the
same factors that would weigh in favor of allowing a motion to
continue would weigh against allowing a motion to dismiss, and
vice versa. The factors to be considered under rule 10 include
"[w]hether the failure to grant a continuance . . . would be
likely to . . . result in a miscarriage of justice," and
"whether there has been a failure . . . to use due diligence to
obtain available witnesses." Mass. R. Crim. P. 10 (a) (2).
We conclude that, in balancing these factors, the judge
exceeded the limits of his discretion. In concluding that
dismissal would not result in a miscarriage of justice, the
judge gave inadequate weight to the public interest in bringing
to trial defendants who are charged with murder and to the fact
38
that barely one year had passed since the defendants'
arraignments. Although dismissals without prejudice would not
preclude the Commonwealth from seeking new indictments and
prosecuting the cases anew, see Commonwealth v. Anderson, 402
Mass. 576, 579 (1988), it is nonetheless a severe sanction that
must be exercised with great caution in a murder case that has
moved with unusual speed to trial.
The judge also gave great weight to his finding that the
Commonwealth had failed to exercise due diligence in securing
Garcia's attendance. The judge made this finding without the
benefit of an evidentiary hearing, concluding instead that
dismissal was warranted even if he accepted as true the facts
proffered by the Commonwealth. Therefore, in reviewing the
dismissal for failure to prosecute, we also must accept the
Commonwealth's proffer as true.
According to that proffer, the police had been in regular
contact with Garcia since 2015, long after Garcia would have
realized that the Commonwealth had failed to assist him with his
own narcotics case, but the police did not learn until June 8,
2017 -- when Garcia stated in a telephone call that he did not
"want to be bothered any longer" regarding these cases -- that
he was unwilling to testify at trial. To be sure, where there
were warning signs that Garcia might no longer be willing to
cooperate, the police should have taken steps to assure his
39
appearance at trial before late May, since it was clear by May
11, when the Commonwealth's first motion to continue was denied,
that the trial would proceed as scheduled on June 12. Moreover,
when the police were unable to reach Garcia by telephone, they
should not have waited until June 7 to send an officer to
Florida to locate him. And although it is reasonable for the
Commonwealth not to have sought interstate process when it still
believed that Garcia was willing to cooperate, if the
Commonwealth had moved sooner, it would have realized earlier
that it needed to take steps to compel his attendance. Having
said that, the Commonwealth did act promptly once it learned
that Garcia was unwilling to testify. And although one can
fault the effort made by the investigator for the Florida State
Attorney's office in attempting to serve Garcia with interstate
process, the Commonwealth is not responsible for the quality of
that effort. In short, even if the judge was correct that the
Commonwealth had not exercised due diligence in procuring
Garcia's attendance at trial, its lack of diligence does not
rise to the level that we have, in other cases, recognized as
justifying dismissal for failure to prosecute, especially where
the indictments are for murder and where only one additional
week had been given to locate and produce Garcia for trial.
See, e.g., Anderson, 402 Mass. at 579 (dismissal within judge's
discretion where prosecutor was repeatedly tardy and not ready
40
to proceed on first day of trial); Commonwealth v. Joseph, 27
Mass. App. Ct. 516, 518-519 (1989) (dismissal within judge's
discretion where prosecutor was not ready for trial because of
witnesses' absence, apparently made no "inquiry concerning
[their] absence," and took "cavalier attitude" toward case).
See also Commonwealth v. Clark, 454 Mass. 1001, 1002 (2009) ("a
judge has the authority to dismiss an indictment . . . where the
Commonwealth has repeatedly failed to produce its witnesses and
effectuate a prosecution" [emphasis added]).
In such circumstances, we expect a judge presiding over a
murder case to give the Commonwealth more time to locate a
recalcitrant essential witness, and to dismiss for failure to
prosecute only where it is apparent that continued diligent
efforts would prove futile. Where the interests of justice so
require, and where the defendant's appearance at trial can be
assured, a judge may diminish the prejudice to the defendant
resulting from such a continuance by releasing the defendant on
bail with appropriate conditions, as the judge did here during
the pendency of this appeal.
Finally, although the judge identified the Commonwealth's
failure to prosecute as a separate and alternative ground for
dismissal, we note that he may have relied to some extent on his
erroneous conclusion that dismissal was required under rule 36.
He wrote, for example, that, "[w]ere it not for the expiration
41
of the [r]ule 36 period, the Court might have waited slightly
longer before dismissing the case, if there were even a glimmer
of hope that the Commonwealth might actually secure . . .
Garcia's testimony." Because he failed to fully consider
certain factors when exercising his discretion, and because his
reasoning appeared to rest in part on his view that the time
limits under rule 36 had run, we conclude that the judge abused
his discretion in dismissing the indictments for failure to
prosecute.
Conclusion. For the foregoing reasons, the order allowing
the defendants' motions to dismiss is vacated. The cases are
remanded to the Superior Court for further proceedings
consistent with this opinion.
So ordered.