Commonwealth v. Dirico

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SJC-12400

COMMONWEALTH vs. JOSEPH DIRICO.

Middlesex. April 2, 2018. - September 13, 2018.

Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.

Constitutional Law, Speedy trial. Practice, Criminal, Speedy
trial, Discovery.

Indictments found and returned in the Superior Court
Department on September 15, 2005.

A motion to dismiss was heard by John T. Lu, J.; the cases
were tried before Elizabeth M. Fahey, J.; a motion for
reconsideration of the motion to dismiss was heard by Fahey, J.;
and a supplemental motion to reconsider the motion to dismiss,
filed on October 28, 2015, was considered by Lu, J.

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

Rebecca Rose for the defendant.
Jamie M. Charles, Assistant District Attorney, for the
Commonwealth.

GANTS, C.J. The defendant, Joseph Dirico, claims a

violation of his rights to a speedy trial under Mass. R. Crim.
 2

36 (b), as amended, 422 Mass. 1503 (1996) (rule 36 [b]); the

Sixth Amendment to the United States Constitution, as

incorporated through the Fourteenth Amendment; and art. 11 of

the Massachusetts Declaration of Rights. The defendant contends

that the Commonwealth was responsible for the delay in providing

him with the results of deoxyribonucleic acid (DNA) evidence

testing, and that none of the time after he filed a motion for

mandatory discovery should be considered excludable delay. We

hold that the defendant's right to a speedy trial under rule

36 (b) was not violated.

We conclude that the discovery the defendant characterized

as "mandatory" was not mandatory discovery that the Commonwealth

must automatically provide to a defendant under Mass. R. Crim.

P. 14 (a) (1), as amended, 444 Mass. 1501 (2005) (rule

14 [a] [1]). We also conclude that, even if it did constitute

mandatory discovery, a defendant who does not want the speedy

trial clock to be tolled where a scheduled event is continued

because of the Commonwealth's delay in providing mandatory

discovery must, under rule 14 (a) (1) (C), move to compel the

production of that discovery or move for sanctions, which the

defendant failed to do here. Here, the defendant acquiesced in,

benefited from, and was partially responsible for the vast

majority of the delay between the filing of his motion for

mandatory discovery and the filing of his motion to dismiss for
 3

lack of a speedy trial: the defendant retained an expert to

evaluate the results of the Commonwealth's DNA testing, the

defendant did not object to the Commonwealth's delay in

providing the additional information regarding that testing

ordered by the judge to be produced, and a trial date could not

reasonably be assigned until the expert had obtained and

evaluated that additional information.

Finally, we conclude that a criminal defendant who moves

for dismissal for lack of a speedy trial, claiming violation of

his or her rights to a speedy trial under rule 36 and the United

States and Massachusetts Constitutions, is entitled to review of

such constitutional claims even where his or her rule 36 claim

is denied. A constitutional analysis of a speedy trial claim is

separate and distinct from a rule 36 analysis, and is triggered

when a defendant alleges "that the interval between accusation

and trial has crossed the threshold dividing ordinary from

'presumptively prejudicial' delay." Commonwealth v. Butler, 464

Mass. 706, 709-710 (2013), citing Doggett v. United States, 505

U.S. 647, 651-652 (1992). Having conducted that constitutional

analysis, we hold that the defendant's constitutional rights to

a speedy trial were not violated.

Background. On September 15, 2005, a Middlesex County

grand jury returned indictments charging the defendant with

three counts of statutory rape of his fifteen year old daughter
 4

(victim), in violation of G. L. c. 265, § 23. The defendant was

arraigned on October 20, 2005, in the Superior Court, and

pleaded not guilty to all three counts.

During the course of its investigation, the police learned

from the defendant's wife that the victim disclosed to her that

the defendant had had sexual intercourse with the victim on the

couch in the basement of the family home. A police officer

accompanied the defendant's wife into the home and seized the

cushion cover of the couch as evidence. Later, using a

fluorescent light, the police located approximately seven spots

on the cushion cover and observed signs of semen. On May 16,

2005, the cushion cover was brought to the State police crime

laboratory (crime lab) for examination of possible DNA evidence.

On July 11, 2006, the defendant's wife notified the police

that the victim had found a framed photograph of the victim on

which, according to the victim, the defendant had ejaculated

numerous times during masturbation and then handed to the

victim. A police inspector examined the framed photograph with

a fluorescent light and an orange filter, and observed signs of

bodily fluids on the frame. This item was submitted to the

crime lab on July 21, 2006, for DNA testing.

On September 7, 2006, a judge ordered the defendant to

provide his saliva on a buccal swab. On December 13, 2006, the

record indicates that the prosecutor provided the defendant with
 5

a "DNA Affidavit" from a crime lab case manager of forensic

biology, which was dated January 9, 2006. The record does not

reflect the content of this affidavit, but one can infer that it

did not include a DNA examination of the framed photograph and

that it did not compare the defendant's DNA to any DNA that

might have been located on the cushion cover.

On May 23, 2007, the Commonwealth provided additional DNA

discovery to the defendant,1 and defense counsel informed the

prosecutor that the defendant would be retaining an expert to

review the DNA findings. On June 22, 2007, the defendant filed

a motion for funds for a DNA expert and a motion for "mandatory

discovery." The latter motion sought an order that the

Commonwealth provide copies of "all [electronic data] regarding

the DNA testing," "all electronic files related to the case,

reported or not," and the "Standard Operating Manual" used by

the laboratory analysts who conducted the DNA testing. The

judge allowed both motions on that same day. But he did not

issue an order to Orchid Cellmark, the private laboratory that

the Commonwealth had used to conduct the DNA testing, directing

the production of the records, until September 4, 2007.2 On

1 The record does not reflect the content of that
deoxyribonucleic acid discovery.

2 The precise date on which the Commonwealth submitted
evidence samples to Orchid Cellmark for analysis is unclear from
the record.
 6

September 10, 2007, the Commonwealth provided the defendant with

the supplemental discovery that the defendant had requested.

On August 6, 2007, a status review was held, and the case

was continued until September 4, 2007, to give defense counsel

more time to provide the Commonwealth with the name and

curriculum vitae of its defense expert. A status review was

held on September 4, 2007, but the case was continued at the

suggestion of the court (without any objection by the defendant)

until October 11, 2007. At that October 11 status conference,

the defendant had yet to provide the Commonwealth with the

required reciprocal discovery regarding his defense expert; this

was provided to the Commonwealth on October 23, 2007.

Late in December, 2007, the defendant sent a report to the

Commonwealth that "included a notation about missing discovery

material." The Commonwealth represents that it promptly

telephoned defense counsel and initiated written communications

in an effort to clarify what discovery was missing.

Nevertheless, it took until January 30, 2008, for the

Commonwealth to receive clarification that the defendant did not

have the results of the Y-chromosome short tandem repeat method

(Y-STR) testing, which is male-specific DNA testing. On March

6, 2008, shortly after receiving the Y-STR results from Orchid

Cellmark, the Commonwealth provided the defendant with them.
 7

With this production, the defendant had the results of all of

the DNA testing in the case.

The DNA analysis of the couch cushion and framed photograph

found DNA only in epithelial cells commonly found on the surface

of human skin. The results of the Y-STR testing demonstrated

that the defendant "could not be excluded as the donor of any of

the DNA profiles obtained from any of the epithelial [cell]

fractions of the cushion cuttings." The results of the Y-STR

testing demonstrated that the defendant's DNA "matched" the DNA

profile from an epithelial fraction of the framed photograph.

One of the cushion cover samples yielded "a possible [DNA]

mixture, indicating the possible presence of an unidentified

individual." No DNA from semen was reported to be found on

either item that was tested.

On May 20, 2008, the defendant filed a motion to dismiss

for lack of a speedy trial, claiming that the delay in bringing

his case to trial violated rule 36 (b), the Sixth Amendment, and

art. 11. The judge calculated what he found to be the

excludable delay, reached a "preliminary" finding of fact that

no more than 258 days attributable to the Commonwealth had

elapsed between the date of arraignment and the date of the

filing of the motion to dismiss, and accordingly denied the

defendant's motion without prejudice.
 8

The defendant's first trial began on September 30, 2008,

and, as a result of a hung jury, ended in a mistrial on October

8, 2008. On February 17, 2009, the defendant's second trial

commenced before a different judge, and the jury found the

defendant guilty on all three counts of statutory rape. The

Appeals Court affirmed his convictions in an unpublished

memorandum and order pursuant to its rule 1:28. See

Commonwealth v. Dirico, 79 Mass. App. Ct. 1130 (2011).

On November 26, 2012, the defendant, representing himself,

moved for reconsideration of the denial of his motion to dismiss

for lack of a speedy trial, and the judge who had presided over

his second trial denied the motion, concluding that the

defendant had waived this claim by not seeking reconsideration

before appeal and by not raising it on appeal. The defendant

appealed, and the appeal was stayed by the Appeals Court to

allow him, after the appointment of counsel, to renew his motion

to dismiss for lack of a speedy trial.

On October 28, 2015, the defendant, now represented by

counsel, filed a supplemental motion to reconsider the denial of

the motion to dismiss, arguing that his rights to a speedy trial

under rule 36 (b), the United States Constitution, and the

Massachusetts Declaration of Rights had been violated by the

denial of his motion to dismiss before his first trial. The

judge who had originally denied that motion issued new findings
 9

of fact and denied the motion to reconsider, this time finding

that, after considering the excludable delay, only ninety-seven

days that were attributable to the Commonwealth had elapsed

between the date of arraignment and the date of the filing of

the motion to dismiss. The judge noted that, on June 22, 2007,

another judge had allowed the defendant's "Motion for Mandatory

Discovery," where the defendant moved for discovery of various

data, files, and documents relating to DNA testing, but that

these items of discovery were not produced in full to the

defendant until March 6, 2008. The judge declined to count any

portion of this DNA discovery delay as elapsed time attributable

to the Commonwealth because the defendant had not filed a motion

to compel this discovery or a motion for sanctions pursuant to

rule 14.

The defendant appealed, and the Appeals Court affirmed the

denial of the defendant's motion for reconsideration in an

unpublished memorandum and order pursuant to its rule 1:28. See

Commonwealth v. Dirico, 91 Mass. App. Ct. 1116 (2017). We

granted the defendant's application for further appellate

review.

Discussion. In reviewing a defendant's speedy trial claim

on appeal, we accept the judge's findings of fact absent clear

error where the judge's findings rest on his or her evaluation

of the credibility of a witness testifying at an evidentiary
 10

hearing, or where the judge's findings rest on his or her memory

of events from presiding over the proceedings. See Barry v.

Commonwealth, 390 Mass. 285, 289 (1983). We then "make an

independent determination of the correctness of the judge's

application of constitutional principles to the facts as found."

Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting

Commonwealth v. Mercado, 422 Mass. 367, 369 (1996). But "[w]e

are in as good a position as the judge below to decide whether

the time limits imposed by the rule have run" where the judge's

findings, as here, rest solely on the docket, the clerk's

minutes, and additional evidence in the record. See

Commonwealth v. Denehy, 466 Mass. 723, 730 (2014), quoting

Barry, supra. 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").3

1. Rule 36. Rule 36 is a "[case] management tool,

designed to assist the trial courts in administering their

dockets." Barry, 390 Mass. at 295-296, 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

3 In Commonwealth v. Taylor, 469 Mass. 516, 524 (2014), we
declared, "On appeal, we consider whether the judge abused his
discretion in assessing the defendant's speedy trial claims."
We no longer believe this to be the correct standard of review.
 11

which [criminal] defendants who desire a speedy trial can secure

one." Id. 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." Commonwealth v. Spaulding,

411 Mass. 503, 504 (1992).4 See Mass. R. Crim. P.

36 (b) (1) (C), (D). Dismissal under rule 36 is with prejudice.

Commonwealth v. Lauria, 411 Mass. 63, 71 (1991).

Here, the defendant has established a prima facie violation

of rule 36, because 943 days elapsed between his arraignment on

October 20, 2005, and the filing of his motion to dismiss for

lack of a speedy trial on May 20, 2008. The burden therefore

shifts to the Commonwealth to justify the delay. See Spaulding,

411 Mass. at 504. Subtracting twelve months (i.e., 365 days)

from this period leaves 578 days that the Commonwealth has the

burden to show were excludable.5

4 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). The return day is "the day upon
which a defendant is ordered by summons to first appear or, if
under arrest, does first appear before a court to answer to the
charges against him, whichever is earlier." Mass. R. Crim. P.
2 (b) (15), as amended, 397 Mass. 1226 (1986). Here, where the
defendant was under arrest, the return day is the date of
arraignment, October 20, 2005. See id.

5 In 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
 12

The defendant contends that the Commonwealth cannot meet

this burden because the 333 days that elapsed between the filing

of his motion for mandatory discovery on June 22, 2007, and the

filing of his motion to dismiss on May 20, 2008, should not be

deemed excludable delay in that this delay resulted from the

Commonwealth's failure to timely provide the defendant with

mandatory DNA discovery.6

There are two separate ways in which the Commonwealth can

meet its burden of justifying a delay, thereby excluding it from

the speedy trial calculation under rule 36. The first way 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 hearings on

pretrial motions" and "delay[s] . . . during which any

proceeding concerning the defendant is actually under

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 v. Commonwealth, 390 Mass. 285,
292 (1983).

6 The Appeals Court noted that, "[a]t oral argument, defense
counsel agreed that our resolution of the [333 days between the
filing of the defendant's motion for mandatory discovery and the
filing of his motion to dismiss] is outcome-determinative. The
defendant's rule 36 speedy trial claim rises or falls on the
attribution of the [333-day delay] to the Commonwealth." See
Commonwealth v. Dirico, 91 Mass. App. Ct. 1116 (2017). Although
the defendant no longer makes this concession on appeal, we may
take note of his earlier statements before the Appeals Court.
 13

advisement." Mass. R. Crim. P. 36 (b) (2) (A) (v), (vii). Also

excludable is "[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."

Mass. R. Crim. P. 36 (b) (2) (F).7

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

7 The judge may exclude a period of delay 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 granting of the
continuance outweigh the best interests of the public and the
defendant in a speedy trial." Mass. R. Crim. P. 36 (b) (2) (F).
See Commonwealth 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"). As a reviewing court, we are
not in a position to characterize a continuance as an "ends of
justice" exception under rule 36 (b) (2) (F) where the motion
judge did not explicitly or implicitly make the requisite
finding. See Reporter's Notes to Mass. R. Crim. P.
36 (b) (2) (F), Massachusetts Rules of Court, Rules of Criminal
Procedure, at 212 (Thomson Reuters 2018) ("It is implicit that
[b][2][F] does not countenance an after-the-fact appraisal of
the causes of delay by a reviewing court; in order to be
excluded, the delay must have been the subject of a formal
continuance. This does not, of course, preclude the appellate
court from considering whether the grant or denial of a
continuance constituted an abuse of discretion").
 14

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 (time excluded where defendant

failed to object to continuance); Denehy, 466 Mass. at 731-732

(same); Lauria, 411 Mass. at 68-69 (same); Commonwealth v.

Farris, 390 Mass. 300, 305 (1983) (same). In doing so, we have

emphasized that rule 36 imposes obligations on all parties, and

that it is the obligation of criminal defendants to "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.8

Delay arising from forensic testing at a laboratory, such

as the analysis of DNA found at a crime scene, is not an

enumerated category of delay under rule 36 (b) (2).

Accordingly, there is no automatic excludable delay for the time

8 The determination whether a defendant acquiesced in, was
responsible for, or benefited from a delay is often
retrospective, and accordingly 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 on an often slim record,
judges should, where possible, make contemporaneous findings
whether time should be excluded under rule 36 (b) (2) (F).
 15

period between when a sample is sent to a laboratory for

analysis and when a laboratory report is completed. Cf. Barry,

390 Mass. at 292 ("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"). But

excludable delay may arise from forensic testing where a

scheduled court event is continued because the forensic testing

has yet to be completed and the scheduled event cannot

reasonably be held until the parties obtain the testing results.

For instance, where a final pretrial conference needs to be

continued because the parties have yet to receive a forensic

report from the laboratory, the period of delay arising from the

continuance can be excluded pursuant to rule 36 (b) (2) (F) if

the judge finds that "the ends of justice served by the granting

of the continuance outweigh the best interests of the public and

the defendant in a speedy trial." Where a judge grants a

continuance to allow more time for forensic testing without

making a rule 36 (b) (2) (F) finding, the delay arising from the

continuance may also be excludable if the defendant acquiesced

in the delay by agreeing to, or failing to object to, a

continuance, if the defendant was responsible for the delay (by

asking for the forensic testing, or otherwise being the reason

for the continuance), or if the delay has benefited the

defendant. See Commonwealth v. Rodgers, 448 Mass. 538, 542-543
 16

(2007) (delay of 239 days resulting from continuances caused by

delay in completion of Commonwealth's forensic DNA testing was

excluded under speedy trial rule, where Commonwealth presented

evidence that, "at each of the Commonwealth's requested

postponements of status conferences on the subject, the

defendant agreed to postponements to specific future dates," and

there was "no evidence to suggest that the Commonwealth misled

the defense as to the progress [or lack thereof] in testing, and

the defendant was always free to insist that a scheduled status

conference go forward so that the delay in testing could be

explained to the judge" [footnote omitted]).

The results of the DNA samples submitted for forensic

testing in this case had the potential to be significant to both

the prosecution and the defense. If DNA from the defendant's

semen were identified on the cushion cover or on the framed

photograph, it would have provided powerful corroboration of the

victim's account of the sexual assaults. If DNA from the

defendant's semen were not identified on either item, its

absence might have undercut the victim's credibility.

The parties were scheduled to be assigned a trial date on

May 23, 2007, but a trial date could not be set because, on that

date, the prosecutor provided defense counsel with additional

DNA discovery and defense counsel informed the prosecutor that

the defendant intended to retain an expert to review the DNA
 17

findings. The discovery motion the defendant filed on June 22,

2007 -- seeking the production of electronic data and files

regarding the DNA testing, and the laboratory's standard

operating manual -- appears to have been intended to assist the

defendant's DNA expert in his review, because the defendant

moved that same day for funds to retain such an expert. The

defendant did not provide the prosecutor with the name and

curriculum vitae of the defense expert until October 23, 2007,

and the defense expert apparently was still engaged in the

forensic review in late December, 2007, when defense counsel

notified the prosecutor that discovery was missing, without

specifying precisely what discovery was missing. A final

pretrial conference scheduled for January 14, 2008, was not

held, and the jury trial scheduled for January 28, 2008, was

postponed; the docket does not reflect whether a new trial date

was scheduled at that time. Clarification that the results of

Y-STR testing were missing from the discovery furnished to

defense counsel did not occur until January 30, 2008, and these

additional results were provided to the defendant on March 6,

2008, which was the date of a scheduled pretrial conference. A

final pretrial conference was held on May 8, 2008, and trial was

scheduled for June 9, 2008, but this trial date was continued

after the defendant moved on May 20, 2008, to dismiss for lack

of a speedy trial.
 18

The time period between May 23, 2007, when the hearing was

held for assignment of a trial date, and May 8, 2008, when a

trial date appears to have been finally assigned at the final

pretrial conference, is an excludable delay of 352 days because

the defendant simultaneously acquiesced in, benefited from, and

was partially responsible for the delay. A trial date could not

reasonably be assigned until the defendant's expert had

completed his review of the results of the forensic testing.

With these 352 days of excludable delay added to the 349 days

preceding May 23, 2007, which are also excludable, and one day

of overlap subtracted, see the table set forth in the Appendix,

the Commonwealth has met its burden by demonstrating a total of

700 days of excludable delay (well beyond the 578 days of

excludable delay it needed to avoid running afoul of rule 36).

The defendant challenges the conclusion that the

Commonwealth has met its burden here by contending that he

sought mandatory discovery on June 22, 2007, and that, as

articulated in Taylor, 469 Mass. at 527, "[a] defendant should

not be required to choose between the right to mandatory

discovery and the right to a speedy trial." The defendant is

correct that, in Taylor, we recognized that where the

Commonwealth had failed to furnish a defendant with mandatory

discovery, it would be unfair to require the defendant to decide

between forgoing that discovery or moving to compel that
 19

discovery if the filing of the motion to compel would produce

automatic excludable delay under rule 36 (b) (2) (A). See id.

at 526-527. To protect a defendant from this dilemma, we

declared that where a defendant, pursuant to rule

14 (a) (1) (C), moves to compel the production of mandatory

discovery or seeks sanctions for its nondisclosure, the time it

takes to resolve the motion "shall not be excluded automatically

from the ultimate speedy trial calculation." Id. at 527-528.

Instead, the judge is to assess whether "the ends of justice

served" by excluding the time outweigh "the best interests of

the public and the defendant in a speedy trial." Id. at 528,

quoting Mass. R. Crim. P. 36 (b) (2) (F). We also declared that

the same principle applies where a defendant agrees to a

continuance only because the defendant has yet to be given

mandatory discovery. See id. at 525.

But the defendant here cannot benefit from our holding in

Taylor for three reasons. First, the discovery he sought on

June 22, 2007, was not mandatory discovery. Mass. R. Crim. P.

14 (a) (1) identifies categories of "mandatory discovery" that

the prosecutor must provide to a defendant as "automatic

discovery," including "[a]ny facts of an exculpatory nature,"

and "[m]aterial and relevant . . . reports of . . . scientific

tests or experiments." Mass. R. Crim. P. 14 (a) (1) (A) (iii),

(vii). "Because rule 14 was intended to facilitate the
 20

automatic production of mandatory discovery 'without the need

for motions or argument,' . . . and because the Commonwealth's

obligation to produce is ongoing, . . . the defendant need not

request any mandatory discovery items." Taylor, 469 Mass. at

521, quoting Reporter's Notes (Revised, 2004) to Rule 14,

Massachusetts Rules of Court, Rules of Criminal Procedure, at

179 (Thomson Reuters 2014). But the defendant here did not seek

"reports of . . . scientific tests"; instead, he sought all of

the electronic data used to prepare the reports, all of the

electronic files related to the case (whether reported or not),

and the laboratory's standard operating manual. The disclosure

of these items of discovery might prove beneficial to an expert

who is retained to analyze a DNA report and may properly be

ordered to be disclosed, but the Commonwealth is not

automatically required under rule 14 (a) (1) to disclose these

items in the course of mandatory discovery unless they are

exculpatory (which the defendant does not contend they are).

Second, even if the discovery that the defendant had

requested constituted mandatory discovery, the defendant failed

to move pursuant to rule 14 (a) (1) (C) to compel its production

or to seek sanctions for its nondisclosure. "[A] defendant

seeking both to preserve his speedy trial rights and to obtain

items of missing mandatory discovery must file a motion for

sanctions or to compel pursuant to rule 14 (a) (1) (C)."
 21

Taylor, supra at 527-528. "[A] defendant may not 'sit by

passively,' then later invoke rule 36." Id. at 527, quoting

Commonwealth v. Bourdon, 71 Mass. App. Ct. 420, 426 (2008).

Rather, a defendant must "take proactive steps to alert the

court and the prosecution" that the Commonwealth has violated

its mandatory discovery obligations. See Taylor, supra.9

Third, even if this were mandatory discovery, and even if

we construed the defendant's motion dated June 22, 2007, as a

rule 14 motion to compel, the judge allowed the motion on the

same day it was filed. Therefore, were we to decline to

automatically exclude the "time it takes to resolve the rule

14 (a) (1) (C) motion" under rule 36 (b) (2), see Taylor, supra

at 528, the defendant would only gain one day under rule 36.

The report of the scientific test regarding the results of

the Y-STR testing would fall within the rubric of mandatory

discovery, but the defendant never moved to compel its

production or to seek sanctions for its nondisclosure.

Therefore, even if the defendant had agreed to continue the

9 Because the defendant did not file a motion pursuant to
Mass. R. Crim. P. 14, as appearing in 442 Mass. 1518 (2004), we
need not reach the issue whether the rule announced in Taylor
should apply retroactively to the defendant. See Commonwealth
v. Taylor, 469 Mass. 516, 528 n.17 (2014) ("We note, as did the
judge hearing the rule 36 motion, that the defendant in this
case never pressed any remedies pursuant to rule 14 in an effort
to address the missing mandatory discovery. Even under the rule
we announce today, therefore, the defendant's motion to dismiss
on speedy trial grounds would not have been successful").
 22

final pretrial conference solely because he had yet to receive

this mandatory discovery, he failed to do what was necessary to

"sound the rule 36 'crisis call' and fulfil his . . .

obligations under the rule." Taylor, supra at 526.

Where a defendant contends that he or she is being denied

the right to a speedy trial because of excessive delays in the

completion of forensic testing and the production of a

scientific report, a defendant must move to compel the

production of that scientific report or move for sanctions

pursuant to rule 14 (a) (1) (C). A defendant is also encouraged

to bring a rule 14 (a) (1) (C) motion when he or she anticipates

that undue delay in the completion of forensic testing will

necessitate the continuance of a scheduled event, or when undue

delay has caused a continuance and the defendant seeks to

prevent the need for a further continuance. Bringing this type

of motion alerts the judge that the defendant is actively

contesting the delay, rather than sitting by passively. See

Taylor, supra at 527-528. Where the delay necessitates the

continuance of a scheduled event, a judge faced with a rule

14 (a) (1) (C) motion must evaluate whether "the Commonwealth

[can] demonstrate[] that its delayed production was not due to

wilful noncompliance or a lack of due diligence," which may

render it "appropriate for the speedy trial clock to be tolled,"

and for appropriate findings to be made by the judge that the
 23

continuance serves the "ends of justice" as required under rule

36 (b) (2) (F). See Taylor, supra at 528. A judge might

otherwise resolve a rule 14 (a) (1) (C) motion by ordering that

the forensic testing, including the production of the scientific

report, be expedited to avoid the need for a continuance or a

further continuance. See id.

Here, because the 352 days between May 23, 2007, and May 8,

2008, gave the defendant time to prepare his DNA expert for

trial, and because the defendant never filed a motion to compel

discovery or for sanctions under rule 14 (a) (1) (C), the

defendant simultaneously acquiesced in, benefited from, and was

partially responsible for the delay. Consequently, we hold that

the defendant's right to a speedy trial under rule 36 (b) was

not violated.

2. Constitutional right to a speedy trial. The defendant

also argues that his constitutional rights to a speedy trial

under the Sixth Amendment and art. 11 have been violated by the

pretrial delay. We note at the outset that rule 36 is "a rule

of case management" and, accordingly, "is wholly separate from

[a defendant's] constitutional right to a speedy trial."

Lauria, 411 Mass. at 67. See Barry, 390 Mass. at 295-296 (rule

36 "creates a means through which [criminal] defendants who

desire a speedy trial can secure one," but "the opportunity

conferred by the rule is not a fundamental constitutional right,
 24

or even a right created by statute"). Consequently, even where,

as here, we conclude that there has been no violation of rule

36, a defendant who claims that his or her constitutional rights

to a speedy trial have been violated is entitled to review of

that claim. See Commonwealth v. Lanigan, 419 Mass. 15, 17-24

(1994) (concluding that defendant's constitutional rights to

speedy trial were not violated after rejecting defendant's rule

36 claim); Commonwealth v. Vasquez, 55 Mass. App. Ct. 523, 529-

530 (2002) (same). See also Commonwealth v. Levin, 390 Mass.

857, 858 n.2 (1984) (declining to analyze constitutional right

separately "[b]ecause the parties agree that rule 36 provides

protection at least as great as the constitutional rights to

speedy trial").10

Both the Sixth Amendment, incorporated through the

Fourteenth Amendment, and art. 11 guarantee criminal defendants

10We note that Mass. R. Crim. P. 36 (c) provides that even
where a defendant is not entitled to dismissal under rule 36 (b)
because fewer than twelve months of nonexcludable delay have
elapsed since arraignment, a defendant is still entitled to
dismissal, upon motion, "where the judge after an examination
and consideration of all attendant circumstances determines
that: (1) the conduct of the prosecuting attorney in bringing
the defendant to trial has been unreasonably lacking in
diligence and (2) this conduct on the part of the prosecuting
attorney has resulted in prejudice to the defendant." Rule
36 (c) "is a statement of the fundamental constitutional
guarantee" and "puts the constitutional standard into manageable
operational terms." See Reporter's Notes to Mass. R. Crim. P.
36 (c), supra at 213. Although rule 36 (c) derives from the
constitutional guarantee of a speedy trial, a defendant may seek
dismissal under rule 36 (c) without making a separate
constitutional speedy trial claim.
 25

the right to a speedy trial. We interpret art. 11 through the

lens of Sixth Amendment analysis. See Commonwealth v. Butler,

464 Mass. 706, 709 n.5 (2013) ("Although we ultimately decide

this case pursuant to art. 11 . . . , we cite Federal cases that

interpret the Sixth Amendment . . . because the analysis is

analogous"). The burden is on the defendant to demonstrate

prejudicial delay sufficient to warrant dismissal of the

indictments against him. See Commonwealth v. Gilbert, 366 Mass.

18, 22 (1974).

Although a defendant who fails to prove a rule 36 (b)

violation faces an uphill battle in proving a violation of his

or her constitutional rights to a speedy trial, the analysis is

somewhat different. One difference is that the speedy trial

clock for a constitutional analysis does not begin at the time

of arraignment. Under art. 11, it begins to run upon the

issuance of a criminal complaint, see Butler, 464 Mass. at 712

("a defendant's right to a speedy trial, at least under art. 11,

attaches when a criminal complaint issues"), and under the Sixth

Amendment, it begins to run at the time of indictment. See

Butler v. Mitchell, 815 F.3d 87, 89 (1st Cir. 2016), cert.

denied sub nom. Butler v. Murphy, 137 S. Ct. 1064 (2017) ("Under

the Sixth Amendment . . . , the speedy-trial right attached, and

the count began, not when the complaint was issued, but when the

. . . indictment was announced"). "[T]o trigger a speedy trial
 26

analysis, an accused must allege that the interval between

accusation and trial has crossed the threshold dividing ordinary

from 'presumptively prejudicial' delay." Butler, supra at 709-

710, citing Doggett v. United States, 505 U.S. 647, 651-652

(1992). The burden of establishing "presumptively prejudicial

delay" is relatively modest -- "[d]epending on the nature of the

charges, the lower courts have generally found postaccusation

delay 'presumptively prejudicial' at least as it approaches one

year." Doggett, supra at 652 n.1. See Commonwealth v. Boyd,

367 Mass. 169, 179-180 (1975) (delay of fourteen months enough

to "trigger some concern"). Here, the defendant's criminal

complaint was issued on May 10, 2005, the indictment was

announced on September 15, 2005, and he filed his motion to

dismiss for lack of a speedy trial on May 20, 2008; this delay

between 2005 and 2008 is more than sufficient to establish

"presumptively prejudicial delay."11

11Because the defendant here is appealing from the denial
of his motion to reconsider his earlier motion to dismiss for
lack of a speedy trial, the speedy trial clock tolls at the time
the defendant filed his motion to dismiss for lack of a speedy
trial (just as it did for the rule 36 analysis). Had the
defendant moved for a new trial following his convictions and
claimed a constitutional violation of his right to a speedy
trial, the speedy trial clock would have tolled on the date when
his first trial commenced. See, e.g., Commonwealth v. Butler,
464 Mass. 706, 707, 714 (2013) (defendant appealed from order
denying motion for new trial, and speedy trial clock tolled on
first day of defendant's trial for purposes of constitutional
speedy trial analysis).
 27

Where a defendant has "established presumptive prejudice,"

we apply the four-factor test articulated in Barker v. Wingo,

407 U.S. 514, 530-531 (1972), to evaluate whether the

defendant's constitutional right to a speedy trial has been

violated. See Butler, 464 Mass. at 710, citing Doggett, 505

U.S. at 651-652. Under the Barker test, a reviewing court

weighs the length of the delay, the reason for the delay, the

defendant's assertion of his right to a speedy trial, and

prejudice to the defendant. See Barker, supra at 530.

Here, the length of the delay was substantial, but there is

no evidence (and no claim by the defendant) that the

Commonwealth was deliberately attempting to delay the trial for

the purpose of hindering the defense. See Commonwealth v.

Wallace, 472 Mass. 56, 61 (2015) ("Weighing most heavily against

the government are deliberate attempts at delay"). Where, as

earlier noted, the trial was delayed in part by the delay in

obtaining all of the forensic testing results, the worst that

can be said is that the Commonwealth was negligent in failing to

more promptly obtain those results. "Although 'our toleration

of . . . negligence varies inversely with its protractedness,'

. . . negligence is obviously to be weighed more lightly than a

deliberate intent to harm the accused's defense." Butler, 464

Mass. at 716, quoting Doggett, 505 U.S. at 657. Because there

is no evidence here of "intentional delay or bad faith on the
 28

part of the Commonwealth," the second prong of the Barker test

weighs only lightly against the Commonwealth. See Butler,

supra.

The defendant's assertion of his speedy trial rights were

notably absent from the record, and a defendant's "failure to

assert the right will make it difficult for a defendant to prove

that he was denied a speedy trial." Wallace, 472 Mass. at 66,

quoting Barker, 407 U.S. at 532. "If the defendant were truly

concerned that the passage of time would undermine his ability

to defend himself, common sense dictates that he would have

pressed for a speedy trial." Gilbert, 366 Mass. at 23. Because

the record reflects that the defendant was responsible for,

benefited from, and acquiesced in the vast majority of the delay

in bringing him to trial, the third prong of the Barker test

weighs heavily against the defendant. See Butler, 464 Mass. at

717.12

Prejudice to the defendant "should be assessed in the light

of the interests of defendants which the speedy trial right was

12We note that the constitutional analysis of this third
prong of the test in Barker v. Wingo, 407 U.S. 514, 530-531
(1972), differs slightly from the rule 36 analysis. A
defendant's acquiescence in delay will render the delay
excludable under rule 36 (b) and, therefore, might prove fatal
to a rule 36 speedy trial claim. But under a constitutional
analysis, "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," albeit an important factor. See
Commonwealth v. Wallace, 472 Mass. 56, 68 (2015).
 29

designed to protect," which include the interests "(i) to

prevent oppressive pretrial incarceration; (ii) to minimize

anxiety and concern of the accused; and (iii) to limit the

possibility that the defense will be impaired." Barker, 407

U.S. at 532. "[A]lthough the defendant is not entirely absolved

of responsibility to present some particularized prejudice at

this stage of the analysis, he is entitled to some degree of

presumptive prejudice that the Commonwealth can rebut with

evidence that any delay left the defendant's 'ability to defend

himself unimpaired.'" Butler, 464 Mass. at 717, quoting

Doggett, 505 U.S. at 658 n.4.

Here, the defendant was released on pretrial probation at

his arraignment on October 20, 2005, his bail was revoked on

July 11, 2006, and he was placed in custody when he did not make

bail. But he eventually made bail on July 19, 2006, and was

released from custody. There is nothing in the docket to

suggest that he was returned to custody before his first trial

commenced on September 30, 2008. Where he spent only eight days

in custody, the defendant did not suffer prejudice from

oppressive pretrial incarceration. We recognize that, "even if

an accused is not incarcerated prior to trial, he is still

disadvantaged by restraints on his liberty and by living under a

cloud of anxiety, suspicion, and often hostility." Barker, 407

U.S. at 533. Although we do not minimize the hardships the
 30

defendant suffered pending trial,13 they do not rise to the level

of prejudice that would justify a dismissal on constitutional

speedy trial grounds. See, e.g., United States v. Carpenter,

781 F.3d 599, 615 (1st Cir.), cert. denied, 136 S. Ct. 196

(2015) (although defendant "argues convincingly that he has

suffered great stress throughout the proceedings, he does not

demonstrate why his anxiety was greater than that suffered by

many other defendants, other than that it continued longer").

The potential impairment of a defense from delay is the

"most serious" concern when evaluating whether the defendant was

prejudiced, "because the inability of a defendant adequately to

prepare his case skews the fairness of the entire system."

Barker, 407 U.S. at 532. But nothing in the record before us

suggests that the delay in bringing the defendant to trial

precluded him from advancing his best defense or otherwise

prejudiced his defense. See Commonwealth v. Beckett, 373 Mass.

329, 334 (1977) ("There was no claim that any witness was

unavailable, nor any proof that any witness, potentially helpful

to the defendant, had forgotten significant facts").

13The defendant claimed that the allegations against him
and the delay in bringing him to trial "forced" him to move out
of his home and to move to Arizona, led to his resignation from
his job, contributed to his severe panic attacks and heart
catheterization, and resulted in his receipt of "angry and
taunting" messages from family and friends.
 31

In conclusion, although the delay between the issuance of

the defendant's criminal complaint (or, under the Sixth

Amendment, the announcement of the indictment) and the filing of

his motion to dismiss for lack of a speedy trial was certainly

troubling in its length, the four Barker factors, "applied in

their totality," do not establish that the defendant's

constitutional right to a speedy trial was violated under either

the Sixth Amendment or art. 11. See Butler, 464 Mass. at 719.

We therefore hold that the defendant's rights to a speedy trial

under the United States and Massachusetts Constitutions were not

violated. See Beckett, 373 Mass. at 335 ("Considering the lack

of prejudice to the defendant and her failure to assert her

right to a speedy trial for over four years after her

indictment, we conclude that, in spite of the inordinate delay,

the defendant was not denied her constitutional rights in the

circumstances").

Conclusion. For the reasons stated, we affirm the denial

of the defendant's motion to reconsider the denial of his motion

to dismiss for lack of a speedy trial.

So ordered.
 Appendix.

Under rule 36, the Commonwealth bears the burden of showing

that, of the 943 days between the defendant's arraignment and

the filing of his motion to dismiss, 578 days should be

excluded. As explained above, the 352 days between May 23,

2007, and May 8, 2008, are excluded because the defendant

simultaneously acquiesced in, benefited from, and was partially

responsible for the delay. The following table looks to the

time period prior to May 23, 2007, to determine whether the

Commonwealth can justify the remaining 226 days. We conclude

that the Commonwealth has satisfied its burden by demonstrating

that 349 days of excludable delay preceded May 23, 2007, for a

total of 700 days of excludable delay.1

Events No. days Explanation
excluded
October 20, 2005 0 Included. Commonwealth does
(arraignment) -- not contest this.
January 9, 2006
(pretrial
conference)
January 9, 2006 0 Included. Pretrial conference
(pretrial held as scheduled. Defendant
conference) -- March did not acquiesce to delay by
15, 2006 (scheduled failing to object to motion

1 Adding up the days of excludable delay in the table
results in a total of 362 days. But because a day is excluded
only once where excludable periods of delay overlap, see Barry
v. Commonwealth, 390 Mass. 285, 292 (1983), thirteen days of
overlap must be subtracted from the 362, resulting in 349 days
of excludable delay. One day of overlap must also be subtracted
when adding the 349 days of excludable delay preceding May 23,
2007, to the 352 days of excludable delay following May 23,
2007. The result is a total of 700 days of excludable delay.
 2

Events No. days Explanation
excluded
motion hearing) hearing that was scheduled at
arraignment. Commonwealth did
not demonstrate that this
period ought to be excluded.

March 15, 2006 0 Included. Motion hearing was
(scheduled motion "not reached by Court," and
hearing) -- April does not appear to have been
19, 2006 (scheduled rescheduled. Defendant did not
status conference) acquiesce to this delay by
failing to object to next
scheduled event, a status
conference, which was scheduled
at arraignment. Commonwealth
did not demonstrate that this
period ought to be excluded.

April 19, 2006 21 Excluded. Status conference
(scheduled status continued at joint request of
conference) –- May parties and rescheduled to May
9, 2006 (scheduled 9, 2006.
status conference)
May 9, 2006 29 Excluded. Status conference
(scheduled status continued at joint request of
conference) -- June parties and rescheduled to June
6, 2006 (status 6, 2006.
conference)
June 6, 2006 (status 0 Included. Status conference
conference) -- June held as scheduled. Defendant
13, 2006 (scheduled did not acquiesce to delay by
suppression hearing) failing to object to next
scheduled event, a suppression
hearing.

June 13, 2006 0 Included. Suppression hearing
(scheduled not held because defendant
suppression hearing) filed no motions to suppress.
-- June 26, 2006 Defendant did not acquiesce to
(scheduled status delay by failing to object to
conference) next scheduled event, a status
conference.
 3

Events No. days Explanation
excluded
June 26, 2006 0 Included. Status conference
(scheduled status not held for unknown reasons.
conference) -- July Commonwealth does not claim
10, 2006 (scheduled this time to be excludable.
status conference)
July 10, 2006 30 Excluded. Status conference
(scheduled status not held at the request of
conference) -- defendant.
August 8, 2006
(scheduled final
pretrial conference)
August 8, 2006 31 Excluded. Final pretrial
(scheduled final conference not held at request
pretrial conference) of defendant.
-- September 7, 2006
(hearing on "misc.
matters")
September 7, 2006 0 Included. Hearing held as
(hearing on "misc. scheduled. Defendant did not
matters") -- acquiesce to delay by failing
September 26, 2006 to object to next scheduled
(scheduled trial event, the trial date, which
date) was scheduled at arraignment.
Commonwealth did not
demonstrate that this period
ought to be excluded.

September 26, 2006 25 Excluded. Trial date was
(scheduled trial postponed at request of both
date) -- October 20, parties.
2006 (scheduled
discovery hearing)
October 20, 2006 4 Excluded. Discovery hearing
(scheduled discovery continued at request of
hearing) -- October defendant and rescheduled to
23, 2006 (discovery October 23, 2006.
hearing)
 4

Events No. days Explanation
excluded
October 23, 2006 10 Excluded. On October 23, 2006,
(discovery hearing) parties executed new tracking
-- November 1, 2006 order because defendant was
(pretrial appointed new counsel. This
conference) set forth November 1, 2006, as
a scheduled pretrial conference
date; December 7, 2006, as a
date for hearing on
nonevidentiary motions to
dismiss; and May 8, 2007, as a
proposed trial date. Defendant
was partially responsible for,
and benefited from, this delay.

November 1, 2006 22 Excluded. On November 1, 2006,
(pretrial parties executed a second
conference) -- pretrial conference report,
November 22, 2006 requiring that defendant's new
(scheduled hearing counsel be provided with same
on "misc. matters") discovery that had been
provided to defendant's prior
counsel by November 22, 2006.
Defendant was partially
responsible for, and benefited
from, this delay.

November 22, 2006 16 Excluded. Hearing not held at
(scheduled hearing request of defendant.
on "misc. matters") Defendant was partially
-- December 7, 2006 responsible for, and benefited
(scheduled discovery from, this delay because of
hearing) appointment of new counsel.
December 7, 2006 50 Excluded. Discovery hearing
(scheduled discovery was not held, without objection
hearing) -- January from defendant, and discovery
25, 2007 (discovery hearing was rescheduled for
hearing) January 25, 2007. Defendant
was partially responsible for,
and benefited from, this delay.
 5

Events No. days Explanation
excluded
January 25, 2007 40 Excluded. Defendant was
(discovery hearing) partially responsible for, and
-- March 5, 2007 benefited from, this delay
(status conference) because of appointment of new
counsel.

March 5, 2007 2 Excluded. Defendant was
(status conference) partially responsible for, and
-- March 6, 2007 benefited from, this delay
(hearing on "misc. because of appointment of new
matters") counsel.

March 6, 2007 14 Excluded. Defendant was
(hearing on "misc. partially responsible for, and
matters") -- March benefited from, this delay
19, 2007 (scheduled because of appointment of new
suppression hearing) counsel.

March 19, 2007 30 Excluded. Defendant requested
(scheduled that a scheduled suppression
suppression hearing) hearing be continued until
-- April 17, 2007 April 17, 2007; the record does
(final pretrial not indicate whether this
conference) hearing was held thereafter.
Defendant was partially
responsible for, and benefited
from, this delay.

April 17, 2007 22 Excluded. Parties filed a
(final pretrial joint motion to continue and
conference) -- May convert then-scheduled trial
8, 2007 (scheduled date of May 8, 2007, into a
trial date) status date because defendant
wanted to afford his expert
more time to review the DNA
testing data. Defendant was
partially responsible for, and
benefited from, this delay.

May 8, 2007 16 Excluded. Parties jointly
(scheduled trial requested a continuance until
date) -- May 23, May 23, 2007.
2007 (hearing for
trial assignment
date)
 6

TOTAL: 349 days of excludable delay (thirteen days of overlap
subtracted from 362)