COMMONWEALTH vs. JOSEPH DAVIS.

COMMONWEALTH vs. JOSEPH DAVIS.

367 Mass. 422

February 5, 1975 - April 16, 1975

Hampden County

Present: TAURO, C.J., REARDON, QUIRICO, BRAUCHER, & HENNESSEY, JJ.

A defendant charged with murder who was represented by counsel throughout a delay in trial resulting in acquittal 423 days after indictment and confinement but who made no motion under G. L. c. 277, Section 72, to be bailed, or motion for a speedy trial, impliedly consented to the delay, and was not entitled under Section 73 to compensation for confinement. [422-424]

PETITION for compensation filed in the Superior Court on March 20, 1973.

The case was reported by Brogna, J., to the Appeals Court. The Supreme Judicial Court, on its own initiative, ordered direct review.

Daniel E. O'Malley, Special Assistant District Attorney (John T. McDonough with him) for the Commonwealth.

Ellio C. Belluci for the defendant.

Francis X. Bellotti, Attorney General, John J. Irwin, Jr., & Robert V. Greco, Assistant Attorneys General, for the Attorney General, as amicus curiae, submitted a brief.

REARDON, J. The defendant petitioned for compensation under G. L. c. 277, Section 73. A Superior Court judge after hearing his petition made findings and rulings and reported the matter here. The defendant had been arrested on December 4, 1971, and was indicted for murder on January 19, 1972. He was thereafter confined awaiting trial and during the trial, which commenced on March 12, 1973, and terminated in his acquittal on March 16, 1973. He spent 423 days in jail from the time of his indictment to his acquittal. [Note 1] From

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the date of indictment to July 19, 1972, a six-month period, 183 days elapsed. He was thus confined 240 days more than six months after having been indicted. The judge found that the delay in trial was not at his request or that of his attorney, and that there was "no activity of any nature on the case until early 1973." He also found that he never made a motion to be bailed under G. L. c. 277, Section 72, and that his failure to move for a speedy trial amounted to an implied consent on his part to the delay in trial. The defendant's request for compensation was denied.

There was no error. This is the first time in which G. L. c. 277, Section 73, has received attention. By its terms Section 73 applies only "if the delay in trial was not . . . with . . . [the defendant's] consent . . . or with the consent of his attorney of record." We agree with the judge that such consent can be implied from inaction. "[T]he failure to demand prompt trial implies a waiver of the right thereto." Commonwealth v. Hanley, 337 Mass. 384 , 388 (1958). Commonwealth v. Marsh, 354 Mass. 713 , 715-718 (1968). Commonwealth v. Lauria, 359 Mass. 168 , 170 (1971). More recent cases departing from the strict demand-waiver rule are concerned with the deprivation of a defendant's constitutional right by the failure to afford him a speedy trial. Commonwealth v. Horne, 362 Mass. 738 , 741-743 (1973). Commonwealth v. Gove, 366 Mass. 351 , 363 (1974). Barker v. Wingo, 407 U.S. 514, 528 (1972). We do not believe that the right under the statute we construe, which is legislative, stands on a footing equal to the constitutional speedy trial right. Rather, the right is similar to that provided in G. L. c. 277, Section 72, which assures one held in custody either a speedy trial or bail on his own recognizance "if he requires it," that is, if a proper demand is made. Commonwealth v. Hanley, supra, at 387-388. Commonwealth v. Marsh, supra, at 716. Further, it is significant here that the defendant was represented by counsel throughout the delay, who filed a flurry of

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pre-trial motions but failed to move for a speedy trial. Cf. Commonwealth v. Marsh, supra, at 717, n. 5. As was noted in Barker v. Wingo, 407 U.S. at 521 (1972), "Delay is not an uncommon defense tactic." We conclude that in this instance the defendant, having impliedly consented to the delay in trial, cannot now be compensated under the statute. It follows that the petition is to be dismissed.

So ordered.

FOOTNOTES

[Note 1] There was an erroneous calculation in the court below that the defendant had spent 426 days in jail from indictment to acquittal.