Posts tagged "1217016"

Commonwealth v. Douglas, et al. (Lawyers Weekly No. 12-170-16)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1184CR10964 1184CR10978 ____________________ COMMONWEALTH v. JASON DOUGLAS and WAYNE STEED ____________________ MEMORANDUM AND ORDER ALLOWING DEFENDANTS’ MOTIONS TO DISMISS PURSUANT TO RULE 36 Jason Douglas and Wayne Steed are accused of constructively possessing a loaded firearm. The police searched a vehicle and found a loaded handgun under the front passenger seat where Douglas had been sitting and immediately in front of the right rear seat where Steed had been sitting. Both men were indicted for unlawfully possessing a firearm, a loaded firearm, and the ammunition in the gun.1 Several years passed while the legality of the vehicle search was litigated. Judge Sanders suppressed the firearm and ammunition. The Appeals Court affirmed, but the Supreme Judicial Court granted further appellate review and reversed.2 The Superior Court magistrate held a status conference in July 2016 and scheduled trial for October 12, 2016. Twelve days before trial the Commonwealth moved for a continuance so that its ballistician witness could attend a training program. Defendants objected, but the trial was continued to January 13, 2017. Defendants now move to dismiss all indictments against them on the ground that the twelve-month speedy trial time limit imposed by Mass. R. Crim. P. 36 has been exceeded. The Court concludes that it must ALLOW these motions because the Commonwealth has not met its burden of showing that continuing the trial from 1 The charges for possessing a loaded firearm and possessing the ammunition found in the gun are duplicative. See Commonwealth v. Johnson, 461 Mass. 44, 51-54 (2011). The charges for possessing a firearm and for possessing a loaded firearm are not duplicative, because the latter charge carries an enhanced penalty in addition to that imposed for the former charge. See Commonwealth v. Rivas, 466 Mass. 184, 189 n.7 (2013) (dictum); Commonwealth v. Charles, 81 Mass. App. Ct. 901, 902, rev’d in part, 461 Mass. 1108 (2012). 2 See Commonwealth v. Douglas, 86 Mass. App. Ct. 404 (2014), rev’d, 472 Mass. 439 (2015). – 2 – October 2016 to January 2017 was justified or required by the unavailability of an essential witness, and as a result the Rule 36 speedy trial clock has run out. The Commonwealth has not proved that the ballistician whose schedule it was seeking to accommodate was essential (because the Commonwealth could have proved its case with a substitute expert witness or with no ballistician at all) or that this witness was unavailable within the meaning of Rule 36 (because a police department employee is not unavailable merely because she or he would prefer to go to an out-of-state training program). 1. Legal Background. “Rule 36 ensures that defendants are brought to trial within a reasonable […]

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Posted by Massachusetts Legal Resources - December 28, 2016 at 8:00 pm

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