COMMONWEALTH vs. BERNARD F. UNDERWOOD.

ROSE, J. The defendant was convicted on three indictments for armed robbery in a trial held subject to G. L. c. 278, Sections 33A-33G. He is here on an assignment of errors, on the basis of which he advances three principal arguments. Errors assigned but not argued are deemed waived. The facts material to the argued issues will be recited separately in our discussion of each of them.

1. First, the defendant contends that he was denied his right to a speedy trial, in violation of the statutory mandate of G. L. c. 277, Section 72A, as amended through St. 1965, c. 343, and the guarantees of the United States (Sixth Amendment by reason of the Fourteenth, see Klopfer v. North Carolina, 386 U.S. 213 [1967]), and Massachusetts (art. 11 of the Declaration of Rights) Constitutions.

The chronology of events material to this issue is as follows. The robberies occurred on November 14, 1971. The defendant was named in three complaints issued by a District Court on November 30, 1971. At that time the defendant was a fugitive from justice, but he was returned to M. C. I., Walpole, on May 10, 1972. [Note 1] Arrest warrants were lodged at Walpole on November 2, 1972. On December 11,

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1972, the defendant signed an application under G. L. c. 277, Section 72A. The Commissioner of Correction signed the application on December 13, 1972, but it was not received by the District Court until February 13, 1973. The defendant was arraigned in the District Court on June 20, 1973, where he filed a motion to dismiss on July 31, 1973, on the ground of failure to grant a speedy trial in compliance with G. L. c. 277, Section 72A. This motion was denied by the court on the same day. The defendant then filed pro se, on September 14, 1973, a petition seeking interlocutory relief in the Supreme Judicial Court. [Note 2] The indictments were returned September 21, 1973. A motion to dismiss the indictments for failure to grant a speedy trial was filed in the Superior Court on October 24, 1973, and denied on November 12, 1973. The motion to dismiss was renewed at the inception of the trial on February 14, 1974.

A. We first consider the defendant's claim that the Commonwealth failed to comply with the requirements of G. L. c. 277, Section 72A. That statute provides, in the parts relevant to the question before us, that a "prisoner serving a term of imprisonment . . . has the right to apply" to a court in which an "untried indictment, information or complaint is pending" against him "for prompt trial or other disposition thereof. Such application shall be . . . sent by such prisoner to the commissioner of correction . . . who shall promptly forward it to such court . . .. Any such prisoner shall, within six months after such application is received by the court, be brought into court for trial or other disposition

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of any such indictment, information or complaint, unless the court shall otherwise order."

General Laws c. 277, Section 72A, is a statute of limited purview, intended to expedite and dispose of charges pending against an individual who is already serving a term of imprisonment. Commonwealth v. Stewart, 361 Mass. 857 (1972). Commonwealth v. Gove, 366 Mass. 351, 355 (1974). The charge of which an applicant seeks a speedy disposition must have a status before a particular court (Commonwealth v. Royce, 358 Mass. 597, 599 [1971]; Commonwealth v. Gove, supra), and the statute directs that application be made to that court.

Accordingly, we focus initially on the question whether the complaints issued by the District Court were disposed of in accordance with G. L. c. 277, Section 72A, following the defendant's application thereunder. The defendant argues that because he signed the application on December 11, 1972 (and immediately forwarded it to the Commissioner of Correction who signed it two days later), and because he was not arraigned in the District Court until June 20, 1973, the six-month period provided by the statute was not complied with. However, G. L. c. 277, Section 72A, specifically sets the operative event for the commencement of the six-month period as the time "such application is received by the court." The defendant's application was not received by that court until February 13, 1973. The arraignment, which was an effective disposition of the warrants pending in the District Court (Commonwealth v. Gove, 1 Mass. App. Ct. 614, 618 [1973]; compare Commonwealth v. Stewart, supra), thus took place within six months of receipt by the court of the defendant's application.

The defendant also directs our attention to the two-month delay between the signing of his application by the Commissioner of Correction on December 13, 1972, and the receipt of the application by the District Court on February 13, 1973. No explanation for the delay appears in the record before us. We see no reason to deviate from the statutory period of six months from receipt in the absence of a showing of purposeful delay on the part of the

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Commonwealth. See Commonwealth v. Kennedy, 2 Mass. App. Ct. 813 (1974).

Alternatively, if the defendant's application or his motion before the Superior Court to dismiss for failure to grant a speedy trial pursuant to G. L. c. 277, Section 72A, (see Commonwealth v. Boyd, 367 Mass. 169, 177 [1975]) is taken as imposing a six-month requirement on the Superior Court, the effective date for the commencement of that period was September 21, 1973, when the indictments were returned. See Commonwealth v. Royce, supra, at 599; Commonwealth v. Stewart, supra. The trial on the indictments began on February 14, 1974, well within six months from the date the indictments were returned.

The defendant's claim of a violation of G. L. c. 277, Section 72A, is without merit.

B. In addition to the claim of violation of the statutory right provided by G. L. c. 277, Section 72A, the defendant argues that he was denied his right to a speedy trial guaranteed by the State and Federal Constitutions. [Note 3] See Commonwealth v. Gove, 366 Mass. at 356-365; Klopfer v. North Carolina, 386 U.S. 213 (1967); Dickey v. Florida, 398 U.S. 30 (1970); United States v. Marion, 404 U.S. 307 (1971); Barker v. Wingo, 407 U.S. 514 (1972). For purposes of this discussion, we consider these two constitutional mandates to be analogous. Commonwealth v. Gove, supra, at 356, n. 6. Commonwealth v. Blasser, 2 Mass. App. Ct. 754, 760 (1975). We follow the two-step analysis employed in Commonwealth v. Gove: "a preliminary consideration of the time at which the guaranty attaches and a subsequent plenary consideration of the facts in . . . [the] particular case in terms of the criteria by which the constitutionality of delays is judged." 366 Mass. at 357, citing Dickey v. Florida, supra, at 41.

Complaints on all three charges were issued by the District Court on November 30, 1971. The defendant thereby

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became the "accused," and his constitutional right to a speedy trial attached at that time. United States v. Marion, 404 U.S. 307 (1971). Commonwealth v. Horan, 360 Mass. 739, 740-741 (1972). Commonwealth v. Gove, supra, at 358-359. The total time period from the date of the complaints until the date of trial on February 14, 1974, covered twenty-six and a half months.

Under the test devised in Barker v. Wingo, four factors are employed in a "difficult and sensitive balancing process" to determine whether the constitutional mandate of a speedy trial has been complied with. 407 U.S. at 530-533. Commonwealth v. Gove, supra, at 361. The factors are the "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id. quoting Barker v. Wingo, supra, at 530. The factors are accorded equal weight, with "[t]he burden on the defendant to demonstrate prejudicial delay sufficient to warrant dismissal." Commonwealth v. Gove, supra, at 361; and cases cited.

The threshold inquiry is whether the delay was of sufficient length to trigger an examination of the other factors. Commonwealth v. Gilbert, 366 Mass. 18, 21 (1974). Commonwealth v. Dominico, 1 Mass. App. Ct. 693, 701 (1974). A twenty-six and a half month delay clearly merits close scrutiny of the defendant's speedy trial claim. See Commonwealth v. Gove, supra, at 362, n. 13. Compare Commonwealth v. Gilbert, supra (31 months); Commonwealth v. Dominico, supra (19 months).

The next factor of the Barker balancing test that we consider is whether the defendant has asserted his right to a speedy trial. Unquestionably, the defendant consistently and energetically pressed his interest on this point. This, in itself, is not enough, however.

In considering the reasons for the delay, we note initially that significant portions of this time are attributable to the defendant. At the time the complaints were issued the defendant had been a fugitive from justice for a period of approximately five and a half months. He apparently remained so until returned to M. C. I., Walpole, on May 10,

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1972. [Note 4] Certainly, that period must be excluded in any consideration of the delay in bringing the defendant to trial, as he cannot have a speedy adjudication of the charges brought against him while he is absent or unavailable. See Commonwealth v. Jones, 360 Mass. 498, 501 (1971); Commonwealth v. Blasser, 2 Mass. App. Ct. at 756, 760; A. B. A. Standards, Speedy Trial, Section 2.3 (e), pp. 29-30 (Approved Draft, 1968).

An examination of the period from May 10, 1972, when the defendant was serving sentences at M. C. I., Walpole, for unrelated offenses, and November 2, 1972, when the warrants were lodged at the prison likewise does not presumptively indicate delay attributable to the Commonwealth. The defendant cannot expect his whereabouts to be quickly ascertained when he has been a fugitive from justice for over five months after the complaints were issued. Further, as in Commonwealth v. Gove, supra, at 363, where the defendant's motion to dismiss and the resulting hearing "undoubtedly . . . set back the trial date," here the defendant's motion to dismiss on July 31, 1973, and his resulting appeal also were responsible for considerable delay.

Thus, the defendant is responsible for a considerable period of delay occurring toward the end of the twenty-six and a half month time span under scrutiny. From the moment the defendant filed his pro se petition for interlocutory relief on September 14, 1973, in the Supreme Judicial Court, all movement toward the commencement of his trial was stopped due to the pendency of the petition at the appellate level. Indeed, the motion judge at the November 12, 1973, hearing indicated that it would be unwise to proceed with a trial which could be rendered a nullity if the pro se petition should be allowed. We are in agreement with that assessment of the situation. [Note 5] Adding to this delay, both the

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defendant and his counsel admitted at the November 12th hearing that if the motion were denied, they were neither "pressing" nor "prepared" to go to trial at that time. The period between November 12, 1973, and the trial on February 14, 1974, was consumed by voluminous pre-trial motions filed by the defendant, and delay during that period was for the accommodation of the defendant. Compare Commonwealth v. Boyd, 367 Mass. 169, 177-179 (1975); Commonwealth v. Parry, 1 Mass. App. Ct. 730, 733-734 (1974).

There is little if any explanation in the record for the remaining delay, the period between November 2, 1972, and June 20, 1973. However, "[a]bsent a demonstration of culpability on the part of the Commonwealth in delaying trial, `the burden . . . [is] on the defendant to show that the government unreasonably caused a prejudicial delay.'" Commonwealth v. Jackson, ante, 511, 517 (1975), quoting Commonwealth v. Gilbert, supra, at 22. We hold that this burden has not been sustained by the defendant. However deplorable the delays in notifying the defendant of the charges and in arraigning him, there is no showing of a calculated effort on the part of the Commonwealth to prejudice the defendant. Cf. United States v. Brown, 495 F. 2d 593, 600 (1st Cir. 1974), cert. den. 419 U.S. 965 (1974); Barker v. Wingo, 407 U.S. at 531.

Delay must be proportional in part to the complexity of the case. See Barker v. Wingo, 407 U.S. at 531; Commonwealth v. Dominico, supra, at 701. The transcript of the trial reveals that these were not complex crimes or ones involving complicated investigation and preparation on the part of the prosecution. Nevertheless, although the prosecution of a crime may be relatively straightforward, when that crime is a felony certain procedural steps (designed largely for the benefit of a defendant) are necessitated by our system of criminal jurisprudence, and "orderly criminal

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proceedings of necessity entail some delay for preparation and hearings." Commonwealth v. Gove, supra, at 362. This case, moving through the two-tier Massachusetts court system, permitted the defendant to come under the jurisdiction of two separate courts. Following a probable cause hearing in the District Court, the defendant was bound over to the grand jury, which subsequently indicted him. The disposition of the defendant's case in the Superior Court was, in fact, expeditious, involving an interval of less than two months between the indictments and the hearing on the motion to dismiss, discussed above. "The essential ingredient [of the right to a speedy trial] is orderly expedition and not mere speed." United States v. Marion, 404 U.S. at 313, quoting Smith v. United States, 360 U.S. 1, 10 (1959).

In the circumstances of this case, as in Commonwealth v. Gove, the defendant has not established either a lack of due diligence by the Commonwealth or deliberate efforts by the Commonwealth to postpone trial. Clearly, the defendant was responsible for much of the delay and he has failed to sustain the burden of showing that the Commonwealth intentionally or unreasonably caused the balance of the delay.

Finally, we turn to the question whether the defendant was prejudiced by the delay in bringing his case to trial. While lack of a showing of prejudice to a defendant is not in itself sufficient to deny a speedy trial claim (Moore v. Arizona, 414 U.S. 25 [1973]; Commonwealth v. Green, 353 Mass. 687, 690 [1968]), nevertheless, it is an important factor to be considered.

The defendant argues that he was prejudiced in his ability to defend himself because two witnesses who could provide alibi evidence had died in the interval prior to trial. (A third alibi witness did testify at trial.) Neither at the November 12, 1973, hearing on the defendant's motion to dismiss (filed October 24, 1973) nor at the time of the renewal of that motion just prior to trial did the defendant introduce, or attempt to introduce, any evidence to that

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effect. [Note 6] We cannot accept unsupported assertions of counsel that certain witnesses had since deceased. In these circumstances, such allegations should have been supported either by affidavits or by evidence introduced at the time the motions to dismiss were argued [Note 7] so that the question of credibility could be timely passed upon. [Note 8] See Commonwealth v. Dominico, 1 Mass. App. Ct. at 703. "The defendant must . . . substantiate his claim that delay prejudiced his defense." Commonwealth v. Gove, 366 Mass. at 364, citing cases. On the record before us, there is no acceptable basis for our concluding that the defendant was prevented from making his strongest case.

In light of the defendant's responsibility for a sizeable portion of the delay, his failure to show lack of due diligence or intentional efforts to delay trial on the part of the Commonwealth, and his failure to substantiate a showing of prejudice as a result of the delay, we conclude that the defendant

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was not denied his constitutional right to a speedy trial.

2. Next, the defendant assigns as error the denial of his motion to suppress an out-of-court identification made by one of the victims of the robbery from the showing of a single photograph and the anticipated (and subsequently admitted) in-court identification by her; the latter on the ground that it was tainted by the challenged out-of-court identification.

The trial judge made no findings of fact in relation to his denial of the motion to suppress. While a preference for such a judicial record of facts found in a pretrial suppression hearing has been expressed on numerous occasions (Commonwealth v. Cook, 351 Mass. 231, 234 [1966], cert. den. 385 U.S. 981 [1966]; Commonwealth v. Murphy, 362 Mass. at 544, 546-547; Commonwealth v. Forrester, 365 Mass. 37, 44-45 [1974]; Commonwealth v. Henley, 1 Mass. App. Ct. 564, 567 [1973]), the fact that all the evidence at the pre-trial suppression hearing, introduced through a single witness, was uncontradicted [Note 9] permits us to review the judge's ruling on the motion without the necessity of remanding the case for the purpose of making such findings. See Commonwealth v. Flaherty, 1 Mass. App. Ct. 282, 287 (1973). Cf. Commonwealth v. Forrester, supra.

The victim, who made the contested out-of-court photographic identification, testified at the pre-trial suppression hearing that the robbery took about five to seven minutes, that the defendant held a gun aimed at her, that she had an opportunity to observe the defendant, that she

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stood right in front of him, and that the lighting was fairly good. She also testified that three or four days after the robbery she was shown a group of pictures from which she identified the defendant. The identification actually sought to be suppressed was one made from a single photograph and occurred about a week after the identification from the group of photographs. No evidence was introduced as to the manner or circumstances in which the photograph was shown, and there is nothing in the record to indicate that the photograph itself was introduced in evidence at that time.

The Commonwealth did not introduce at trial testimony concerning the claimed suggestive photographic identification. [Note 10] Contrast Commonwealth v. Kudish, 362 Mass. 627, 630-631 (1972). Therefore, the judge's denial of the motion to suppress it, if error, was most certainly harmless. Consequently, we limit our review of the judge's ruling solely to the question whether the in-court identification was properly admitted in evidence.

"[C]onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384 (1968); Commonwealth v. Murphy, 362 Mass. at 544. As soon as it becomes apparent that the out-of-court identification may have been affected by constitutional error, the burden of proof shifts to the Commonwealth to establish by clear and convincing evidence that there is an independent basis for a subsequent in-court identification by the witness. United States v. Wade, 388 U.S. 218, 240 (1967). Commonwealth v. Flaherty, 1 Mass. App. Ct. at 287. But the defendant has the initial burden of showing possible illegality. Except for the fact that the defendant was identified

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from the showing of a single photograph, no evidence was introduced as to the procedure or circumstances in which the photograph was shown.

Even if we were to assume that the out-of-court photographic identification procedure was impermissibly suggestive, that fact "does not as a matter of law preclude the same witness from making a valid in-court identification." Commonwealth v. Flaherty, supra, at 286, citing United States v. Wade, supra, at 240. Commonwealth v. Cooper, 356 Mass. 74, 84. "The test to be applied in this situation is `whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" Commonwealth v. Flaherty, supra, quoting United States v. Wade, supra, at 241 and Wong Sun v. United States, 371 U.S. 471, 488 (1963).

Applying the standards formulated by the United States Supreme Court in United States v. Wade, supra, at 241 (see also Stovall v. Denno, 388 U.S. 293 [1967]; Simmons v. United States, 390 U.S. 377 [1968]), and repeated in this jurisdiction on numerous occasions (see Commonwealth v. McGrath, 361 Mass. 431, 438; Commonwealth v. Flaherty, supra), we rule that the uncontradicted testimony of the only witness called at the suppression hearing established by clear and convincing evidence that her in-court identification would have an independent source. The witness had ample opportunity to observe the defendant at the time of the crime (generally considered the most important of the factors set out in the Wade case; see Commonwealth v. Kennedy, ante, 218, 221, n. 4 [1975], and cases cited), over a period of several minutes, from close proximity, under fairly good lighting. [Note 11] In addition, the observation

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was made "under circumstances likely to fix in the mind of the witness the identity of the person confronted." Commonwealth v. Frank, 357 Mass. 250, 254 (1970); Commonwealth v. Kennedy, supra. Moreover, the witness testified that she correctly identified the defendant's picture from a group of pictures shown to her several days after the robbery but prior to the display of the single photograph. Compare Commonwealth v. Ross, supra, at 673-676; Commonwealth v. Flaherty, supra, at 288. No contention is made that that initial identification was the product of any improper action by the State; it follows that repetitions of that initial identification need not be suppressed. Commonwealth v. Wheeler, ante, 387, 392 (1975). There was no error in admitting in evidence the in-court identification of the defendant by this eye-witness.

3. The last of the defendant's assigned errors that we consider is the denial of his challenge to the array of traverse jurors. [Note 12] The challenge to the array is premised on the alleged exclusion of the following groups: (1) persons under the age of twenty-five, (2) persons on welfare, (3) women with children under a certain age and (4) persons over the age of sixty-five. The defendant argues that the exclusion of these groups resulted in a violation of his right under the Sixth Amendment (by way of the Fourteenth) and art. 12 of the Declaration of Rights to be tried before a petit jury selected from a representative cross section of the community. See Taylor v. Louisiana, 419 U.S. 522, 526-533 (1975); Commonwealth v. Beneficial Fin. Co. 360 Mass. 188, 214-15 (1971), cert. den. sub nom. Farrell v. Massachusetts, 407 U.S. 910 (1972), and sub nom. Beneficial Fin. Co. v. Massachusetts, 407 U.S. 914 (1972).

On a challenge to the jury array, the defendant has the burden of proving as a matter of fact that a distinct and

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identifiable class of persons has been systematically excluded from the jury selection process. Hernandez v. Texas, 347 U.S. 475 (1954). Swain v. Alabama, 380 U.S. 202, 205 (1965). Taylor v. Louisiana, supra, at 526-538. Commonwealth v. Beneficial Fin. Co., supra, at 214. Commonwealth v. Stone, 366 Mass. 506, 509 (1974). Commonwealth v. Averett, post, 710 (1975). See also Peters v. Kiff, 407 U.S. 493 (1972). Furthermore, the defendant must raise his challenge prior to the commencement of the trial. See Commonwealth v. Rodriquez, 364 Mass. 87, 91 (1973). See also G. L. c. 277, Section 47A.

Whether the exclusion of those four groups would violate the Fourteenth Amendment need not be considered, because the defendant has failed to sustain his burden of proving as a matter of fact that any such exclusion was intentional. See generally Hernandez v. Texas, supra, at 479; Commonwealth v. Stone, supra. But see King v. United States, 346 F. 2d 123 (1st Cir. 1965); Commonwealth v. Slaney, 350 Mass. 400, 402 (1966); Commonwealth v. Beneficial Fin. Co., supra, at 212.

The only evidence [Note 13] introduced by the defendant which is properly before us is a number of monographs published by the Massachusetts Department of Commerce and Development containing data on the population (broken down by age and sex categories) of most of the cities and towns in Essex County. See Amory v. Commonwealth, 321 Mass. 240, 250-253 (1947). After the jury was empanelled the defendant did make two motions [Note 14] aimed at securing witnesses and records for the purpose of substantiating his

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challenge to the array. [Note 15] However, a challenge to the jury array must be made before the jury is empanelled (Commonwealth v. Rodriquez, supra), and the motions were therefore properly denied as not timely. After the Commonwealth had rested its case, the defendant sought to introduce in evidence a list of the seventy-one veniremen from which the petit jury was chosen. Introduction of such evidence at that stage in the proceedings was clearly too late. Even where it is shown in a timely fashion by adequate proof [Note 16] that no member of an allegedly excluded group is in a particular jury pool, that showing is not sufficient to establish a case of systematic exclusion. See Commonwealth

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v. Rodriquez, 364 Mass. at 92. The defendant has clearly failed to sustain his burden of proving a systematic exclusion.

Judgments affirmed.