Opinion
No. 11–P–254.
2013-01-16
COMMONWEALTH v. Rodrick James TAYLOR.
By the Court (KANTROWITZ, KATZMANN & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Having been convicted by a Superior Court jury of murder in the second degree, the defendant—whose defense was that his cousin Martin McCray (Martin) had committed the crime—now appeals. Before us is his consolidated appeal from the judgment and from the order denying his motion for new trial. We affirm.
Speedy trial. The defendant contends that the trial judge
erred in denying the motion to dismiss based on Mass.R.Crim.P. 36, 378 Mass. 909 (1979).
The judge who ruled on the speedy trial motion was also the trial judge.
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), 378 Mass. 910. See Commonwealth v. Marable, 427 Mass. 504, 505 (1998). “If a defendant is not brought to trial within the time limits ... he shall be entitled upon motion to a dismissal of the charges.” Mass.R.Crim.P. 36(b)(1)(D), 378 Mass. 910. See Commonwealth v. Rodgers, 448 Mass. 538, 539–540 (2007). “The filing of a motion pursuant to rule 36 tolls the running of the rule 36 time limits.” Id. at 540 n. 4. Largely for the reasons set forth by the trial judge in his comprehensive memorandum, some of which are briefly noted below, we determine that there was sufficient excludable delay such that there was no rule 36 speedy trial violation. 1. The defendant misconstrues the statement made by the judge who presided at the discovery compliance hearing on January 25, 2007. The judge's statement that “ rule 36 will not be waived from this date until the time of compliance,” referred only to the thirty-day period previously specified by the judge. Moreover, the defendant cannot rely on counsel's statement at the January, 25, 2007, hearing, that the defendant was not waiving rule 36, as a standing objection to run the rule 36 clock. A defendant cannot rely on his objection to a continuance on one occasion to provide a “blanket objection” to any and all future continuances. Commonwealth v. Fling, 67 Mass.App.Ct. 232, 236 n. 9 (2006). In order for the rule 36 clock to run, counsel must formally object to the delay. Commonwealth v. Bourdon, 71 Mass.App.Ct. 420, 424, 426 (2008). A defendant cannot agree to a continuance and assert his rule 36 rights. See Commonwealth v. Martin, 447 Mass. 274, 284 (2006).
In reviewing a ruling on a speedy trial motion, while we may “give deference to the determination made by the judge below, we may reach our own conclusions.” Barry v. Commonwealth, 390 Mass. 285, 289 (1983). When a speedy trial claim is raised “the docket and minutes of the clerk are prima facie evidence of the facts recorded therein.” Ibid. We largely rely on this evidence in deciding the rule 36 claim.
2. “[C]harges are not to be dismissed if the delay comes within one of the ‘[e]xcluded [p]eriods' set forth in rule 36(b)(2), or if the defendant ‘acquiesced in, was responsible for, or benefited from the delay.’ “ Commonwealth v. Rodgers, 448 Mass. at 539, quoting from Commonwealth v. Spaulding, 411 Mass. 503, 504 (1992).
a. As the judge found, any agreement for delays by counsel should be construed as an agreement to the continuance and a waiver of rule 36 rights. The court records show the defendant did agree to each date for the continuance of the trial. A “defendant is bound by his agreement to the continuances....” Commonwealth v. Sigman, 41 Mass.App.Ct. 574, 579 (1996).
b. As to disputed dates following the statement made by the judge on January 25, 2007, the defendant was in part responsible for the delay. Mass.R.Crim.P. 36(b)(2), 378 Mass. 910. See Commonwealth v.. Lauria, 411 Mass. 63, 68 (1991). As noted, the defense acquiesced in many of the motions for continuance filed by the Commonwealth. Moreover, as the judge found, the Commonwealth had not acted in bad faith. And, even if the prosecutor had not provided late discovery, defense counsel was still partially responsible for these delays, and they should be excluded.
c. The prosecutor's failure to produce court-ordered discovery served as a major cause for delay. However, “time consumed by defense motions, such as ... motions for discovery ... is excludable.” Commonwealth v. Murphy, 55 Mass.App.Ct. 332, 333 (2002). A defendant cannot sit passively on his rights. Commonwealth v. Bourdon, 71 Mass.App.Ct. at 426. The defense must make sure that an objection to a specific continuance is timely noted. Ibid. Otherwise, a court may find that the time spent on the pretrial motion awaiting discovery is beneficial to the defendant and, therefore, excluded.
In sum, we agree with the trial judge's determination that of the 614 days of delay following arraignment, the defendant is responsible for, agreed to, or acquiesced in a total of at least 388 days of delay—well in excess of the 249 days which the Commonwealth needed to justify as excludable.
Closing argument. We are unpersuaded by the defendant's claims that various statements in the prosecutor's closing argument constituted reversible error. The prosecutor's criticisms of the defense were a reasonable response to defense counsel's arguments. See Commonwealth v. Amirault, 404 Mass. 221, 236–237 (1989). With the exception of one collateral matter, the prosecutor did not mischaracterize defense counsel's opening. Commonwealth v. Barros, 425 Mass. 572, 580 (1997). Moreover, the comments about the strength of the evidence and the defendant's whereabouts at the time that he called Martin were proper rejoinders. See Commonwealth v. Christian, 430 Mass. 552, 566 (2000). Any possible error in the closing was cured by the judge's instructions to the jury and did not prejudice the defendant, as there was strong evidence that he, not Martin, killed the victim and burned her body in Franklin Park.
While there was evidence that the victim was killed in Martin's room (a blood stain with the victim's DNA on the floor and testimony of screams coming from the room), the defendant admitted to the police that he was in Martin's room during the approximate time that the victim was murdered and a blood stain with the defendant's DNA was within arm's length of the blood stain with the victim's DNA. Further, in addition to Martin's testimony implicating the defendant, the cellular telephone tower records constituted strong evidence that the defendant was present as the victim's body was burning in Franklin Park.
With respect to the defendant's new trial motion, we agree that the trial judge did not err in not instructing the jury sua sponte on the effects of voluntary intoxication where the defense was not one of intoxication and where the defendant did not rely on intoxication as a mitigating factor at any point. Commonwealth v. Lawrence, 404 Mass. 378, 395 (1989).
Judgment affirmed.
Order denying motion for new trial affirmed.