COMMONWEALTH vs. CLARENCE R. FIELDS.

LIACOS, J. Fields was found guilty of armed robbery (G. L. c. 265, Section 17) on May 15, 1972, by a jury after a trial in the Superior Court. He was sentenced to a term of imprisonment of eight to twelve years. His appeal -- which has involved a rather complex procedural history [Note 1] -- is

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now before us pursuant to G. L. c. 278, Sections 33A-33G.

The question presented on appeal is whether a defendant may be indicted and tried for armed robbery in the Superior Court after a District Court judge acting under the provisions of G. L. c. 277, Section 72A, has dismissed a complaint charging the same crime. [Note 2] We conclude that a dismissal in the District Court on the basis of G. L. c. 277, Section 72A, operates as a bar to subsequent prosecution for the same crime in the Superior Court. Accordingly, Fields's conviction must be vacated.

Our disposition of the case necessitates a summary of the events from the time Fields was first charged with armed robbery until he was tried in the Superior Court. On May 20, 1970, Fields was complained of in the Second District Court of Barnstable for armed robbery (G. L. c. 265, Section 17) and larceny (G. L. c. 266, Section 30) for events which took place on May 6, 1970. On April 7, 1971, Fields, who was incarcerated at the Massachusetts Correctional

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Institution at Concord on unrelated charges, made an application to the District Court under G. L. c. 277, Section 72A. He also filed a pro se request for a speedy trial. On December 28, 1971, the armed robbery and larceny complaints were dismissed by a District Court judge, pursuant to the provisions of Section 72A. It appears that no action -- either judicial or prosecutorial -- had been taken on the complaints during the more than eight months that had elapsed since Fields applied under Section 72A, or, for that matter, during the nineteen months the complaints were pending in the District Court.

In April, 1972, about four months after the complaints were dismissed, Fields was indicted for armed robbery by a grand jury on the basis of the events of May 6, 1970. One month later (on May 11, 1972) Fields was brought to trial on the indictment. Before a jury was empanelled, Fields's attorney made an oral motion that the indictment be dismissed on speedy trial grounds. After brief oral presentation by both sides, the trial judge denied the motion. [Note 3]

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Fields's attorney did not take an exception to this ruling. [Note 4]

1. A defendant in a criminal case has no right to have appellate review of an alleged error in the conduct of his trial unless that error is based on a proper exception. Commonwealth v. Concepcion, 362 Mass. 653, 654 (1972). Commonwealth v. Underwood, 358 Mass. 506, 509 (1970). Commonwealth v. Foley, 358 Mass. 233, 236 (1970). Commonwealth v. Myers, 356 Mass. 343, 346 (1969). However, in an appropriate case, as a matter of discretion, we may consider an error at trial not brought to us by an exception. Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967). See Commonwealth v. Franks, 365 Mass. 74, 82 (1974); Commonwealth v. Conroy, 333 Mass. 751, 757 (1956). Although we have been asked with increasing frequency to use this power as a basis to reverse convictions, see Commonwealth v. Foley, supra at 236, "[t]his power has been sparingly used." Commonwealth v. Myers, supra at 347. [Note 5] We shall consider an error not excepted to at trial "only in the rare case, where `there is a substantial risk of a miscarriage of justice' . . ." Commonwealth v. Leavy, 369 Mass. 963 (1976), quoting from Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).

Fields argues, and we agree, that this is such a case. It is difficult to conceive of a case in which the denial of appellate review could involve a more substantial risk of a miscarriage of justice. Cf. Commonwealth v. Franks, supra

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at 82 (defendant apparently sentenced for a crime other than the one for which he was convicted); Commonwealth v. Freeman, supra at 562-564 (improper charge on admissions by silence). The error claimed here is not limited to an isolated piece of evidence (cf. Commonwealth v. Concepcion, 362 Mass. 653, 654-655 [1972]), testimony (cf. Commonwealth v. Richards, 363 Mass. 299, 310 [1973]; Commonwealth v. Myers, 356 Mass. 343, 346 [1969]), or argument (cf. Commonwealth v. Balakin, 356 Mass. 547, 551 [1969]), or to a few confusing lines in a jury instruction (cf. Commonwealth v. Blackburn, 354 Mass. 200, 205 [1968]), Rather, the error relates to whether trial was appropriate at all after the District Court judge's dismissal of the charges. [Note 6] In such a case we are confident that we should exercise our power under Commonwealth v. Freeman, 352 Mass. 556 (1967). This court has indicated previously that it "has and will exercise the power to set aside a verdict or finding in order to prevent a miscarriage of justice when a decisive matter has not been raised at the trial" (emphasis supplied). Commonwealth v. Conroy, 333 Mass. 751, 757 (1956).

2. General Laws c. 277, Section 72A, as appearing in St. 1965, c. 343, [Note 7] "establishes a priority for [the] trial of defendants

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already in custody." Commonwealth v. Boyd, 367 Mass. 169, 177 (1975).

We have indicated previously that this statute is to be viewed as a "warrant removal" or detainer removal statute which "furnishes a ready method for inmates to their freedom." As such, this statute "bespeaks a clear legislative intention to expedite prosecution of charges already brought." Commonwealth v. Gove, 366 Mass. 351, 356 (1974). See also Commonwealth v. Lauria, 359 Mass. 168, 171 (1971).

This statutory right is a right distinct from that which may arise under the Sixth and Fourteenth Amendments to the United States Constitution or under art. 11 of our Declaration of Rights. See Commonwealth v. McGrath, 348 Mass. 748, 750 (1965). See also Commonwealth v. Gove, 366 Mass. 351 (1974). "Although it may be supposed that the statute's purpose was to assist in the implementation of the right to speedy trial guaranteed by art. 11 of the Declaration of Rights and by the Sixth (by reason of the Fourteenth) Amendment to the Constitution of the United States, the provision is curious in the sense that the right accorded to a defendant turns almost exclusively on delay, which is but one of the several factors which must be considered in determining whether a defendant has been deprived of the constitutional right." Commonwealth v. Gove, 1 Mass. App. Ct. 614, 618 (1973), aff'd on other grounds, 366 Mass. 351 (1974). A violation of the statutory right may be relevant to a consideration of a claim of denial of the constitutional right to a speedy trial, cf. Commonwealth v. Ludwig, 370 Mass. 31, 34 n.1 (1976), but the constitutional question need not be

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reached should the statutory claim be resolved in favor of the defendant, as is here the case. General Laws c. 277, Section 72A, does not set forth the "consequence of a failure to comply with its provisions," Commonwealth v. Gove, supra at 619, but it does direct that "within six months after . . . [an] application is received by the court" there shall be a "trial or other disposition of any . . . [pending] indictment, information or complaint, unless the court shall otherwise order."

While the occurrence of a trial within the statutory period obviously satisfies the statutory mandate, Commonwealth v. Daggett, 369 Mass. 790 (1976); see Commonwealth v. Parry, 1 Mass. App. Ct. 730, 735 n.4 (1974), our prior decisions have made clear that this statute creates no per se rule requiring an immediate trial on application properly made thereunder. See Commonwealth v. Daggett, supra at 792-793, pointing out that the statutory language itself allows a trial judge to make other orders pertaining to the disposition or continuance of the case. Thus, the trial judge may make an order granting a continuance beyond the statutory six-month period where such a delay appears reasonably necessary and justifiable. Commonwealth v. Boyd, 367 Mass. 169 (1975). Commonwealth v. Loftis, 361 Mass. 545 (1972). [Note 8] Other significant events within the statutory period may meet the statutory requirements of "other disposition." See, e.g., Commonwealth v. Stewart, 361 Mass. 857 (1972) (indictments returned); Commonwealth v. Royce, 358 Mass. 597 (1971) (arraignment).

Even if the trial court upon proper application does not take any action within the statutorily prescribed period, "General Laws, c. 277, Section 72A, does not compel a judge to dismiss an indictment if the case is not tried or otherwise

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disposed of within six months after an application for a speedy trial is `received by the court'" (footnote omitted). Commonwealth v. Loftis, 361 Mass. 545, 549 (1972). Where the delay is caused by the defendant or is for his benefit such disposition is not required. Commonwealth v. Boyd, 367 Mass. 169 (1975). Commonwealth v. Loftis, supra.

The Appeals Court has twice held that where the delay or lack of any activity occurred in circumstances neither caused by nor attributable to the defendant, dismissal of the indictment is required by the "mandate" of Section 72A. See Commonwealth v. Alexander, 4 Mass. App. Ct. 212, petition for further appellate review granted, 370 Mass. 866 (1976); Commonwealth v. Gove, 1 Mass. App. Ct. 614 (1973), aff'd on other grounds, 366 Mass. 351 (1974). Neither of those cases involved the precise issue presented here, where the District Court judge dismissed the complaint under Section 72A, and a subsequent indictment based on the same acts was returned. Consequently, we need not now determine the issues ruled on by the Appeals Court in Alexander and Gove.

The procedural facts in the instant case are more closely analogous to those involved in Commonwealth v. Ludwig, 370 Mass. 31 (1976). In Ludwig, a District Court judge dismissed complaints on a motion to dismiss based, inter alia, on a claim of denial of a speedy trial where a continuance had been granted over the defendant's objection in violation of G. L. c. 276, Section 35. [Note 9] A subsequent indictment based on the same acts was returned and a motion to dismiss raising speedy trial claims was denied by the Superior Court judge. We sustained the exception of the defendant to this denial of his motion to dismiss. We believe that the legislative policies expressed by G. L. c. 276, Section 35, are similar to those expressed by G. L. c. 277,

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Section 72A. As is the case with G. L. c. 276, Section 35, after there has been a violation of the statutory direction of G. L. c. 277, Section 72A, "a decision to dismiss on speedy trial grounds could [be] warranted." [Note 10] Commonwealth v. Ludwig, supra at 33. In Ludwig, the District Court judge did not specify the grounds for dismissal but we found that his action "implied the findings of fact necessary to support his action on speedy trial grounds . . . ." Id. at 34. In the instant case the District Court judge, faced with both an application under Section 72A and a motion for speedy trial, chose to endorse on the back of the armed robbery complaint pending before him: "12/28/71 Dismissed by Court in accordance with G. L. [c.] 277 Sec. 72A," and affixed a similar notation to the larceny complaint. He chose not to act on constitutional speedy trial grounds but under Section 72A. In the circumstances of this case we think that the decision of the District Court judge was proper. His action implied the findings of fact necessary to establish a violation of the statute.

We have recently considered the consequence of such a dismissal. In Commonwealth v. Ludwig, supra, we held that "the dismissal of a complaint in the District Court on the ground that the defendant has been denied his right to a speedy trial is a bar to any subsequent prosecution for the same offense whether by later complaint in the District Court or by an indictment in the Superior Court." 370 Mass. at 35. See generally ABA Standards, Speedy Trial Section 4.1 (1974). We believe that the same result is appropriate here. [Note 11]

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Accordingly, because Fields should not have been indicted or tried for armed robbery in the Superior Court, the judgment is reversed, the verdict set aside and the indictment is to be dismissed.

So ordered.