COMMONWEALTH vs. OWEN MCCANTS.

SMITH, J. As a result of two separate but closely related incidents that occurred on October 18 and 19, 1982, the defendant was charged with various crimes. In regard to the events that occurred on October 18, the defendant was charged with assault with intent to rape, assault and battery by means of a dangerous weapon, kidnapping, and indecent assault and battery on a person who had attained the age of fourteen. For the October 19 incident, he was charged with assault and battery, assault by means of a dangerous weapon, attempted kidnapping, and possession of a dangerous weapon while committing a breach of the peace. After a jury trial, he was convicted on the indictments based on the October 19 events and acquitted on the other indictments.

The defendant raises several issues on appeal. They include (1) denial of his motion to dismiss based on lack of speedy trial, (2) denial of a motion in limine, (3) denial of a motion to sever the trial of the October 18 indictments from the trial of the October 19 indictments, (4) alleged erroneous jury instructions, and (5) alleged errors in sentencing.

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1. Denial of motion to dismiss the indictments. The defendant filed a motion to dismiss all the indictments because of an alleged violation of Mass.R.Crim.P. 36, 378 Mass. 909 (1979). After a hearing, a Superior Court judge denied the motion, and the defendant claims error.

"Rule 36 (b) provides that, after a transitional period not applicable to this case, a defendant `shall be tried within twelve months after the return day,' and if the defendant is not brought to trial within that period, as extended by subdivision (b) (2) of the rule, the defendant `shall be entitled upon motion to a dismissal of the charges.' . . . [T]he twelve-month period provided by rule 36 (b) is extended not only by subsection (b) (2) providing for `excluded periods,' but also by periods of delay in which a defendant acquiesces, for which he is responsible, or from which he benefits." Commonwealth v. Campbell, 401 Mass. 698, 702 (1988).

The return day in this case was December 23, 1982, the day that the defendant was arraigned. See Mass.R.Crim.P. 2(b)(15), 378 Mass. 844 (1979). The defendant was not brought to trial until February 24, 1986. He obviously made out a prima facie case of a violation of rule 36(b), and dismissal was mandatory unless the Commonwealth could sufficiently justify the delay. Barry v. Commonwealth, 390 Mass. 285, 291 (1983). See also Commonwealth v. Look, 379 Mass. 893, 898-899 n.2, cert. denied, 449 U.S. 827 (1980). The judge found that the Commonwealth had sustained its burden. The defendant argues that the Commonwealth failed to justify a sufficient number of days to avoid a violation of rule 36(b).

We summarize the lengthy and complicated procedural history as it relates to the defendant's motion. That history includes two earlier motions to dismiss the indictments based on alleged violations of rule 36 and an appeal to this court by the Commonwealth from an adverse decision on the defendant's second motion.

On February 24, 1984, some fourteen months after the return day, the defendant filed his first motion to dismiss the indictments, alleging a violation of rule 36(b). On April 13, 1984, a Superior Court judge (first motion judge) denied the motion,

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ruling that the Commonwealth had justified a sufficient number of excludable days to extend the twelve-month time limit.

On June 1, 1984, the defendant filed his second motion to dismiss the indictments, claiming once again a violation of rule 36. The matter was heard by a different Superior Court judge (second motion judge). He ruled, over the prosecutor's objections, that the first motion judge had intended to total all of the excludable days up to February 24, 1984 (the date that the first motion to dismiss had been filed). The second motion judge, therefore, started his count from February 24, 1984. He determined that ninety-nine days had expired from that date to June 1, 1984, the date on which the second motion to dismiss had been filed. He ruled that the Commonwealth had failed to justify a sufficient number of excludable days to extend the one-year limit set out in rule 36(b) and allowed the defendant's motion to dismiss the indictments.

The Commonwealth appealed that decision to this court, pursuant to Mass.R.Crim.P. 15(b), 378 Mass. 883 (1979). On June 28, 1985, we reversed the second motion judge's decision, vacated his order dismissing the indictments, and remanded the case to the Superior Court. See Commonwealth v. McCants, 20 Mass. App. Ct. 294 (1985).

In our decision we disagreed with the second motion judge's determination that the first motion judge had considered and calculated the entire number of excludable days prior to February 24, 1984. The court said, "Examination of the first motion judge's memorandum of decision and order discloses . . . that [he] did not consider the more debatable exclusion periods and, understandably, calculated those exclusions which, under the text of the rule, qualified readily . . . ." Id. at 296. The court, therefore, determined that the entire period from the return date (December 23, 1982) was open for its examination to determine if there were any excludable days not used in the calculations made by the first motion judge.

From that examination we observed that the first motion judge had not considered those periods of delay represented by continuances requested, agreed to, or acquiesced in by defense counsel, but not shown on the record to have been

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authorized or agreed to by the defendant. We held that continuances "acceded to by [defense] counsel" should reasonably be treated as excluded from the one-year limit even if the defendant had not "explicitly consented to the delay or instructed [his] attorney to obtain it." Id. at 299. In our examination of the dockets and transcripts we identified at least five such continuances, none of which had been considered by either motion judge. We ruled that "[t]he aggregate of easily identifiable days of continuance which [the defendant's] lawyers asked for or agreed to were ninety-eight." Id. at 299. That number of excludable days, we concluded, coupled with other excludable periods, was sufficient to extend the one-year limit. Therefore, we reversed the second motion judge's decision allowing the defendant's motion.

Subsequently, the defendant filed an application for leave to obtain further appellate review by the Supreme Judicial Court. Mass.R.A.P. 27.1, as amended through 367 Mass. 922 (1975). That application for review was denied, 396 Mass. 1102 (1985), and on October 7, 1985, our rescript was filed in the Superior Court.

On December 6, 1985, the defendant filed his third motion to dismiss the indictments based on alleged violations of rule 36(b) and (c). The matter came before the same Superior Court judge who had previously denied the defendant's first motion to dismiss the indictments. Hereafter he will be designated as the third motion judge. Starting on December 9, 1985, that judge held an evidentiary hearing on the motion, concluding the hearings on January 8, 1986. On January 27, 1986, he denied the motion.

In a memorandum that accompanied his decision, the third motion judge observed that the court in McCants had not attempted to determine all the excludable periods that may have occurred prior to the filing of the second motion to dismiss the indictments. His examination of the record, which included docket entries and a partial transcript, showed that defense counsel had agreed to a continuance of the defendant's trial from January 27, 1983, to March 21, 1983, and that that period had not been excluded by either this court or any motion judge, including himself. He ruled that the period was excludable. He

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concluded that a calculation of all the excludable periods showed that the Commonwealth had justified a sufficient number of days to extend the twelve-month period set out in rule 36(b) past December 6, 1985, the date that the third motion to dismiss the indictments was filed.

(a) The defendant argues, on appeal, that the judge should not have excluded the January to March continuance because the defendant himself had not agreed to it. The argument that continuances agreed to by counsel are not excludable unless the defendant specifically and explicitly consented to the delay or instructed the attorney to obtain it was emphatically rejected in Commonwealth v. McCants, supra at 299-300.

The defendant also claims that we in our McCants decision counted the continuance of January 27 as an excludable period. However, an examination of that decision shows that we identified by specific dates each period of continuance that we excluded. The period represented by the January 27 continuance was clearly not excluded in our decision.

The defendant also challenges the third motion judge's determination that the total of all the excludable days was sufficient to extend the one-year limit to a period beyond the December 6, 1985, date.

At the hearing before the third motion judge, the parties stipulated that 1,080 days had passed from the return day to December 6, 1985, the date that the instant motion was filed. As a result of an examination of the materials before us and the McCants decision itself, we conclude that the total number of excludable days is 795 days. [Note 1] When that figure is subtracted from 1,080 days, the difference is 285 days. Therefore, the Commonwealth, at the time that the defendant filed his third motion to dismiss the indictment, had eighty days within which to try the defendant. The trial of the defendant was within that time period.

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(b) The defendant also claimed that there was a violation of rule 36(c), 378 Mass. 912 (1979). [Note 2] That portion of the rule requires dismissal upon a determination by the judge 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." Commonwealth v. McDonald, 21 Mass. App. Ct. 368, 374 n.8 (1986), quoting from the rule. See also Commonwealth v. Bodden, 391 Mass. 356, 359 (1984).

The third motion judge, in ruling on this phase of the defendant's motion, focused on the events that occurred after October 7, 1985, the date that the McCants rescript was received in the Superior Court. The judge found that the prosecutor assigned to the case proceeded with two other trials and a hearing on a suppression motion, that were scheduled prior to October 7. An additional period of delay was caused by the prosecutor taking time off for his previously scheduled honeymoon. The judge concluded that the period of delay should be attributed to the Commonwealth. He concluded, however, that the delays were neither intentional nor designed to frustrate the defendant's rights and that the defendant had failed to establish that the prosecution had been unreasonably lacking in diligence in bringing him to trial. [Note 3]

We have examined the record and agree with the conclusions of the third motion judge. We also note that the Commonwealth in this case faced some rather unusual obstacles in bringing

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the defendant to trial. One such obstacle was the fact that the complainant in the first set of indictments lived in Sweden and, as a result, serious scheduling difficulties occurred.

The third motion judge limited his review to the period after October 7, 1985, because he believed that language in McCants set out in the margin [Note 4] implied that no rule 36(c) issue had developed prior to June 28, 1985, the date of the decision. The defendant argues that the judge should have examined the entire record from the date that he was arraigned to ascertain if the prosecution was unreasonably lacking in diligence in bringing him to trial.

We have examined the record that has been submitted to us. From that record, which includes all the docket entries back to the date that the defendant was arraigned, we conclude that the defendant has failed to establish that the prosecution was unreasonably lacking in diligence in bringing him to trial. The delay for a considerable period after the arraignment was caused to a great extent by the defendant. See the discussion (at part 1(a), supra) in regard to the rule 36(b) phase of the motion.

2. Denial of defendant's motion in limine. The defendant filed a motion in limine asking the trial judge to order the Commonwealth not to refer to the complainants as "victims." He argued that their status was an ultimate issue to be determined by the jury, not the prosecutor. The judge denied the motion, and the defendant claims the denial was error.

The bare assertions in the defendant's brief do not rise to the level of appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). In any event, there was no question that the complainants were, in fact, victims of criminal

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acts committed by someone. The issue before the jury was whether it was the defendant who had committed the crimes, not the status of the complainants.

3. Denial of motion to sever for trial the two sets of indictments. The defendant filed a motion for "relief from prejudicial joinder" pursuant to Mass.R.Crim.P. 9(d)(2), 378 Mass. 860 (1979). He sought separate trials on each set of indictments. His motion was denied, and he claims prejudicial error.

A motion for relief from prejudicial joinder is addressed to the sound discretion of the judge. Commonwealth v. Gallison, 383 Mass. 659, 671 (1981). Commonwealth v. Todd, 394 Mass. 791, 794 (1985). Joinder is proper under the rule if two or more offenses "arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan." Mass.R.Crim.P. 9(a)(1), 378 Mass. 859 (1979). See also rule 9(a)(3).

The offenses in the two sets of indictments occurred on the night of October 18, 1982, and in the early morning hours of October 19, 1982. The time within which both attacks occurred was less than two hours, and the attacks were in close proximity to one another. Both sets of indictments concerned assaults on young women by an assailant with facial hair, wearing a green army fatigue jacket, and carrying a sharp object. [Note 5] Both attacks were carried out with the same modus operandi, grabbing the victim around the throat from behind and dragging or attempting to drag her to a secluded place. In such circumstances, joinder has been upheld in many cases. Commonwealth v. Mahar, 21 Mass. App. Ct. 307, 317 (1985), and cases cited.

4. The judge's instructions to the jury. The defendant claims that the judge gave an erroneous definition of "reasonable doubt" in his jury instructions. The judge paraphrased the definition found in Commonwealth v. Webster, 5 Cush. 295, 319-320 (1850).

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We have examined the instruction and find it to be adequate. [Note 6]

The defendant also contends that the judge improperly instructed the jury on general and specific intent. We need not examine that claim because the bare statements in the defendant's brief do not rise to the level of appellate argument within the meaning of Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Commonwealth v. Shaheen, 15 Mass. App. Ct. 302, 307-308 n.5 (1983). In any event, the judge correctly instructed the jury on the specific intent required for kidnapping.

5. Alleged errors in sentencing. The defendant contends that the judge erred in imposing consecutive sentences on the indictments that charged him with assault and battery, assault by means of a dangerous weapon, and attempted kidnapping. The defendant argues that the crimes of assault and battery and assault by means of a dangerous weapon were so closely related that they were "merged" into the crime of attempted kidnapping, and, therefore, he should not have received consecutive sentences. He cites Morey v. Commonwealth, 108 Mass. 433 (1871), and Commonwealth v. Jones, 382 Mass. 387, 395-397 (1981), as grounds for his argument.

"In this case, we do not reach the questions confronted in Morey and Jones unless we first determine that the conduct on which the [attempted] kidnapping conviction was based necessarily was the same conduct on which the [assault and battery and assault by means of a dangerous weapon] convictions were based." Commonwealth v. Rivera, 397 Mass. 244, 253 (1986). The evidence in this case demonstrates that the attempted kidnapping conviction was not necessarily based on the acts that constituted the other crimes, "and that therefore, separate convictions and punishments for [attempted kidnapping, assault and battery, and assault by means of a dangerous weapon] were appropriate." Ibid.

Judgments affirmed.