Commonwealth v, Davis (Lawyers Weekly No. 11-072-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-1088 Appeals Court COMMONWEALTH vs. NASAHN DAVIS. No. 15-P-1088. Suffolk. September 12, 2016. – June 2, 2017. Present: Agnes, Neyman, & Henry, JJ. Practice, Criminal, Speedy trial, Dismissal. Complaint received and sworn to in the Roxbury Division of the Boston Municipal Court Department on March 16, 2012. After transfer to the Central Division of the Boston Municipal Court Department, a motion to dismiss was heard by Robert J. McKenna, J. Matthew T. Sears, Assistant District Attorney (Lindsey E. Weinstein, Assistant District Attorney, also present) for the Commonwealth. Patrick Levin, Committee for Public Counsel Services, for the defendant. HENRY, J. Seven hundred and forty-two days after Nasahn Davis was arraigned in the Boston Municipal Court on charges of carrying a firearm without a license in violation of G. L. c. 269, § 10(a), he filed a motion to dismiss under Mass.R.Crim.P. 36(b), 378 Mass. 909 (1979). That rule provides that a criminal defendant who is not brought to trial within twelve months of the “return day,” here the arraignment, “is presumptively entitled to dismissal of the charges unless the Commonwealth justifies the delay.” Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992). “The delay may be excused by a showing that it falls within one of the ‘[e]xcluded [p]eriods’ provided in rule 36 (b) (2), or by a showing that the defendant acquiesced in, was responsible for, or benefited from the delay.” Ibid. Accord Barry v. Commonwealth, 390 Mass. 285, 292, 298 n.17 (1983). “A failure to object to a continuance or other delay constitutes acquiescence.” Commonwealth v. Tanner, 417 Mass. 1, 3 (1994). The defendant’s motion to dismiss was allowed; on appeal, the Commonwealth contends that only eighty-one of the 742 days since arraignment are includable in the rule 36 calculation, contending, among other things, that 268 days of delay attributable to court congestion when both sides were ready for trial must be excluded. We conclude that delays attributable to court congestion — if the defendant objects — are not excludable from the rule 36 calculation, unless the judge makes the necessary findings under rule 36(b)(2)(F). Because the Commonwealth cannot justify the delays in excess of the 365-day limit, we affirm the order allowing the defendant’s motion to dismiss. Discussion. The parties agree that the number of days that elapsed […]