COMMONWEALTH vs. RAYMOND MCGRATH.

SPALDING, J. On May 10, 1963, the grand jury for Suffolk County returned three indictments charging the defendant with assault by means of a dangerous weapon, assault with intent to murder, and carrying a firearm without a license. Four months before the return of these indictments the defendant was convicted of "kidnapping and Dyer Act charges" in the United States District Court for the District of Connecticut, and a prison sentence of twenty-two years was imposed. The defendant now is, and has been since his conviction, serving this sentence in the United States penitentiary in Atlanta, Georgia. The Commonwealth "has placed detainer warrants" against the defendant on the three above mentioned indictments, but has taken no other steps to bring him to trial.

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On September 17, 1963, acting pro se, the defendant filed in the Superior Court a petition for a writ of habeas corpus. Orders of notice were served on the district attorney of Suffolk County, the United States, and the warden of the Atlanta penitentiary, "to show cause why the defendant should not be transported to Boston for trial" on the three Suffolk County indictments. A hearing on the petition was held on October 28, 1963, at which all the parties (including the defendant who was represented by court appointed counsel) agreed that a writ of habeas corpus could not issue as a matter of right since the defendant was in Federal custody, but that the United States could waive its right to exclusive custody. The United States represented to the court that under the applicable regulations it was willing to deliver the defendant into the custody of the Commonwealth for trial on the three indictments, but only if it was "reimbursed for the associated costs." Upon being informed that the district attorney of Suffolk County would not authorize the payment of these costs, the judge dismissed the petition for habeas corpus.

Thereafter, upon the defendant's urging, the judge directed the assistant attorney general representing the Commonwealth to inquire of the district attorney whether, if he would not authorize the payment of the costs involved, he would dismiss the indictments. The defendant was notified that the district attorney stood by his decision concerning the payment of costs and intended to take no action, whether by way of dismissal or otherwise, with respect to the pending indictments.

On February 4, 1964, the defendant filed a motion to dismiss the indictments because of the alleged denial of his constitutional right to a speedy trial. The motion, in the alternative, requested an order in the nature of a writ of mandamus requiring the district attorney to authorize and pay the sums necessary to secure the presence of the defendant within the jurisdiction, and to take all other action necessary to secure the speedy trial of the defendant. The judge, after hearing, denied the motion. Being of the opinion,

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however, that the motion raised doubtful and important questions of law, he reported the case in accordance with G. L. c. 278, Section 30A, inserted by St. 1954, c. 528. In his report the judge stated that, without intending to limit the inquiry, the following questions "would seem to require decision." "1. Under the somewhat special circumstances here obtaining, has the defendant been wrongfully denied a right to a speedy trial by the Court's denial of . . . [his] Motion To Dismiss Indictment? 2. If there has been a wrongful denial of the defendant's right to a speedy trial, must the indictments be dismissed, or should an order issue that the defendant forthwith be brought to trial or should some other appropriate disposition be made?"

Article 11 of the Declaration of Rights guarantees to a defendant in a criminal case a right to a speedy trial. Commonwealth v. Hanley, 337 Mass. 384, 387. Were the defendant serving a sentence in a correctional institution in this Commonwealth he would, both under art. 11 and by statute (see G. L. c. 277, Section 72A, inserted by St. 1963, c. 486 [Note p750-1]), have the right, if he requested it, to a prompt trial on the pending indictments. But a different problem is presented where, as here, the defendant is serving a sentence in a Federal prison. In such a situation the Commonwealth hano right to secure the presence of the defendant before our courts. On principles of comity, however, the Federal government may waive its right to exclusive jurisdiction (as it did in the case at bar), and consent to a trial of the defendant in our courts. [Note p750-2]

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Ponzi v. Fessenden, 258 U.S. 254, 265-266. Commonwealth v. Domanski, 332 Mass. 66, 73. Thus, by reason of the consent given by the United States, the Commonwealth, subject to the payment of the necessary costs, is now in a position to bring the defendant to trial.

The question for decision is whether the refusal of the Commonwealth to take the necessary steps (including the payment of appropriate costs) to acquire jurisdiction over the defendant has deprived him of his right to the speedy trial guaranteed by our Constitution. While this question has been discussed by other courts, it is one of first impression here.

In jurisdictions where the question has been considered the holdings are not uniform. Some courts have held, in effect, that once a State commences a criminal prosecution, it has the duty by appropriate action to prevent undue delay in bringing the accused to trial. People v. Piscitello, 7 N. Y. 2d 387, 389. State v. Patton, 76 N. J. Super. 353, affd. 42 N. J. 323. State ex rel. Fredenberg v. Byrne, 20 Wis. 2d 504. [Note p751-1] But other courts have held the contrary. McCary v. Kansas, 281 F. 2d 185 (10th Cir.), cert. den. 364 U. S. 850. Accardo v. State, 39 Ala. App. 453, cert. stricken 268 Ala. 293. In re Douglas, 54 Ariz. 332. Application of Schechtel, 103 Colo. 77, 85. State v. Larkin, 256 Minn. 314. Application of Melton, 342 P. 2d 571 (Okla. Crim.). Raine v. State, 143 Tenn. 168.

In the Federal courts, the converse situation has arisen,

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namely, a delay in trial due to imprisonment in State institutions. One court has held that the defendant's incarceration did not "excuse the Government's long delay in bringing him to trial here, in the absence of a showing that the Government, at a reasonably early date, sought and was unable to obtain his return for trial." Taylor v. United States, 238 F. 2d 259, 261 (Ct. App. D. C.). Contra, Nolan v. United States, 163 F. 2d 768 (8th Cir.), cert. den. 333 U.S. 846; see Bistram v. People, 330 F. 2d 450, 452.

The same problem is presented when the accused is imprisoned in another State. There are decisions which hold that a State has a duty of taking the steps necessary to secure a prompt trial. Pellegrini v. Wolfe, 225 Ark. 459, 463. People v. Bryarly, 23 Ill. 2d 313, 319. Other State courts have reached the opposite conclusion. Cunningham v. State, 5 Storey [Del.]. [Note p752-1] Traxler v. State, 96 Okla. Crim. 231.

We agree with the view taken by the Court of Appeals in People v. Piscitello, 7 N. Y. 2d 387, 389. There it was held that since the defendant could have been produced in a State Court upon request, his Federal detention "affords neither explanation nor excuse" for undue delay in bringing him to trial. It is true that the duty imposed upon the Commonwealth may, as here, entail expense but this in itself should not be sufficient to deprive the defendant of a speedy trial. State v. Patton, 76 N. J. Super. 353, affd. 42 N. J. 323, and State ex rel. Fredenberg v. Byrne, 20 Wis. 2d 504, 512, are to the same effect. We hold that the right to a speedy trial contemplates that the Commonwealth will take reasonable action to prevent undue delay in bringing a defendant to trial, even though some expense may be involved in bringing him into the Commonwealth and returning him to Federal custody. The Commonwealth must, within a reasonable time, either secure the defendant's presence for trial or dismiss the indictments.

The decisions which have adopted a contrary position are unconvincing. Some of them reason that a State need not request the delivery of a person incarcerated elsewhere because

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it cannot demand his custody as a matter of unqualified right. But we fail to see why the lack of an absolute right excuses the exercise of due diligence. Other decisions are based on the notion that the defendant's absence from the jurisdiction is the result of his own wrongdoing. This, however, is not a situation where the accused is voluntarily remaining without the Commonwealth. Nor is it a case where the Federal authorities have refused to release him. See People v. South, 122 Cal. App. 505. Here, the delay in the trial of the defendant for a crime of which he is presumed innocent can be prevented. And we see no good reason why the cloud of "anxiety and public suspicion attendant upon an untried accusation" must continue to exist for an extended period of time, or why his defence should be jeopardized by bringing him to trial at a time when "witnesses . . . [may be] unavailable and their memories dulled." [Note p753-1] Commonwealth v. Hanley, 337 Mass. 384, 387.

It follows that the Commonwealth within a reasonable time must take the necessary steps to bring the defendant into this Commonwealth for trial on the three Suffolk County indictments and if it fails to take such steps the defendant is entitled, upon appropriate motion, to have the indictments dismissed.

So ordered.

CUTTER, J. (concurring) I concur in the result because (1) delaying action upon these indictments seems likely to be prejudicial to the defendant, and (2) no unreasonable burden will be imposed upon the Commonwealth by requiring the district attorney promptly either to try or to dismiss the indictments. I assume it to be implicit in the decision

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that circumstances might exist in which it would be proper to allow the Commonwealth to delay trial until a Federal prisoner's release. By such delay the Commonwealth, of course, would run the risk that the indictments would be dismissed then because of failure to afford a speedy trial.