COMMONWEALTH vs. LAWRENCE BURHOE.

HALE, C.J. The defendant appeals under G. L. c. 278, Sections 33A-33G, following his conviction by a Superior Court judge sitting without jury on separate indictments charging armed robbery, assault and battery with a dangerous weapon, and unlawful possession of a firearm, all arising out

Page 591

of a nighttime holdup of a Seven-Eleven food store in Billerica. [Note 1] Indictments were returned on July 21, 1971, and trial was held on September 10, 1974. The defendant assigns as error the denial of his motions to dismiss for want of a speedy trial, a right guaranteed to him under both the United States and Massachusetts Constitutions. [Note 2]

The Sixth Amendment to the Constitution of the United States provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." [Note 3] This right has been applied to the states by virtue of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213 (1967). The defendant became the "accused" when he was indicted, and his right to a speedy trial attached at that time. United States v. Marion, 404 U.S. 307, 313 (1971). Commonwealth v. Horan, 360 Mass. 739, 740-741 (1972).

Once the right to a speedy trial has attached, one must employ the "difficult and sensitive balancing process" mandated by Barker v. Wingo to determine whether that right has been abridged. 407 U.S. 514, 530-533 (1972). The factors to be considered are the "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Commonwealth v. Gove, 366 Mass. 351, 361 (1974), quoting Barker v. Wingo, supra, at 530.

These factors were considered by a Superior Court judge on the defendant's motions to dismiss. Following an evidentiary hearing, the motions were denied, and the judge filed findings of fact and rulings. To the extent that the judge's

Page 592

findings are supported by the evidence, they will be sustained. See Commonwealth v. Jones, 360 Mass. 498, 502 (1971). Cf. Commonwealth v. McGrath, 361 Mass. 431, 437 (1972); Commonwealth v. Murphy, 362 Mass. 542, 547 (1972).

The length of the delay (thirty-eight months between indictment and trial) is clearly sufficient to justify serious concern and requires inquiry into the other three factors. Compare Commonwealth v. Gilbert, 366 Mass. 18, 21 (1974) (thirty-one months); Commonwealth v. Underwood, ante 522, 527-528 (1975) (twenty-six months). Contrast Commonwealth v. Kennedy, 2 Mass. App. Ct. 813 (1974) (four months).

2. The balancing test of Barker v. Wingo mandates consideration of whether the defendant has asserted his right to a speedy trial. For this purpose, we shall view the defendant's May 17, 1973, motion to dismiss as a demand for speedy trial. This motion was filed almost two years after the indictments, and immediately after its denial trial was postponed for a considerable period because of vacation plans of defense counsel. In June of 1974, the defendant, acting pro se, filed a motion for a speedy trial and another for dismissal. In July his counsel filed another motion to dismiss based on want of a speedy trial. Although the defendant may not have been constantly pressing for the disposition of his cases, his efforts demonstrate sufficient concern for the preservation of his right to a speedy trial.

3. Next we must consider the reasons for the delay. The motion judge found that there had been twenty-six or twenty-seven continuances, many unexplained and apparently unobjected to. [Note 4] While he was unable to determine the

Page 593

reason for each one of the continuances, he was able to identify a number of factors which contributed to the delay. The delays were caused in party by the failure of the defendant to appear as scheduled for arraignment, defendant's discovery motions, defense counsel's vacation plans, and a change of defense counsel. Attempts at plea bargaining, congested calendars, and summer recesses also contributed to the delay. But most important a delay of nearly eleven months was caused by a clerical error in the District Attorney's office. [Note 5]

Page 594

In denying the defendant's motions to dismiss for lack of a speedy trial, the motion judge found ". . . as a fact that at no time during the long period while these cases were pending did any of the prosecuting officers intentionally delay the trial of these cases. In fact, on several occasions on which these cases appeared on the trial list the Commonwealth's witnesses were present in the courtroom and available for trial." This finding is not challenged by the defendant. Instead, the defendant asserts that the Commonwealth's negligent misfiling of the case jacket mandates dismissal.

The finding that the Commonwealth did not intentionally delay the trial does not excuse the delay. The Commonwealth must take "reasonable action to prevent undue delay in bringing a defendant to trial." Commonwealth v. Horne, 362 Mass. 738, 743 (1973), quoting Commonwealth v. McGrath, 348 Mass. 748, 752 (1965). But although the Commonwealth is ultimately responsible for delays caused by administrative neglect and overcrowded courts, these reasons should be weighed less heavily than an intentional prosecutorial attempt to frustrate the defense. See Barker v. Wingo, 407 U. S. at 531; Commonwealth v. Gove, 366 Mass. at 362.

While it is clear that some of the delay must be attributed to the Commonwealth, that in itself does not require dismissal. See Commonwealth v. Steadman, 1 Mass. App. Ct. 541 (1973). "Absent 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, 366 Mass. at 22.

4. The motion judge found that the defendant suffered no actual trial prejudice as the result of the numerous delays. There is no indication in the record that the delay precluded the defendant from making his best defense. [Note 6]

Page 595

While a showing of trial prejudice is not necessary to prove a denial of the right to speedy trial (Moore v. Arizona, 414 U.S. 25 [1973]), the absence of such prejudice is an important factor to be considered.

The defendant asserts that the delays deprived him of opportunities for parole, concurrent sentences, and rehabilitation. [Note 7] See Commonwealth v. Gove, 366 Mass. at 364-365. Although the loss of such opportunities may in some cases be so prejudicial as to require dismissal, [Note 8] we find that any support in the record for the claim of such prejudice is too speculative and insubstantial to warrant such action. [Note 9] Id. at 365.

As we have previously indicated, the defendant has the burden of showing prejudicial delay sufficient to warrant dismissal. Id. at 361. We hold that this burden has not been sustained by the defendant. Although it is possible for a delay to be so long as to be inherently prejudicial (see Commonwealth v. Green, 353 Mass. 687, 690 [1968]), the thirty-eight month delay in the instant case is not. It is well settled that delay in and of itself does not require dismissal. See generally Commonwealth v. Horne, 362 Mass. 738 (1973) (forty month delay); Commonwealth v. Jackson, ante, 511 (thirty-eight month delay). [Note 10] Since Barker

Page 596

v. Wingo states that no one of the four factors is either "necessary or sufficient," 407 U.S. at 533, there may be cases of extreme delay where little or no prejudice need be shown. Conversely, a very short delay may require a very great showing of prejudice. It is for this reason that motions to dismiss for want of a speedy trial must be approached on an ad hoc basis. Once the factors have been identified, courts must assess them.

We are of the opinion that there was no error in the motion judge's denial of the defendant's motions to dismiss.

Judgments affirmed.