COMMONWEALTH vs. REGINALD BUTLER.

SPINA, J. This case presents the central questions for purposes of a defendant's right to a speedy trial under the Sixth Amendment to the United States Constitution or art. 11 of the Massachusetts Declaration of Rights: (1) when the speedy trial clock starts, and (2) whether the speedy trial clock "resumes" or "resets" when, after the right to a speedy trial attached, the Commonwealth dismisses charges and then reinstates the charges at a later date. We conclude, pursuant to art. 11 of the Massachusetts Declaration of Rights, that (1) the speedy trial clock starts when a Massachusetts criminal complaint issues, and (2) the speedy trial clock "resumes" when the Commonwealth reinstates charges following dismissal.

After the Appeals Court concluded that the delay in bringing the defendant to trial did not violate Mass. R. Crim. P. 36, 378 Mass. 909 (1979), and affirmed the defendant's rape conviction, see Commonwealth v. Butler, 68 Mass. App. Ct. 658, 661, 667 (2007) (Butler I), the defendant filed a motion for a new trial alleging that appellate counsel [Note 1] was ineffective for failing to argue to the Appeals Court that the defendant's motion to dismiss on speedy trial grounds should have been allowed under the speedy trial provisions of the State or Federal Constitution. [Note 2] See id. at 659, n. 2. The motion for a new trial was denied, and the Appeals Court affirmed. [Note 3] See Commonwealth v. Butler, 79 Mass. App. Ct. 751, 759 (2011) (Butler II). We granted the defendant's application for further appellate review. Like the Appeals Court, we conclude that the defendant was not denied

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the effective assistance of counsel. Therefore, we affirm the order denying the motion for a new trial.

1. Facts. We summarize the relevant facts as found by the motion judge, supplemented by uncontested facts set forth in Butler I, supra at 659-661.

On September 16, 1991, a criminal complaint and an arrest warrant issued from the Chelsea Division of the District Court Department against the defendant for rape in violation of G. L. c. 265, § 22 (b), and unarmed burglary in violation of G. L. c. 266, § 15, both alleged to have occurred three days earlier. On May 21, 1992, a warrant for the defendant's arrest for these crimes was lodged at the correctional institution where the defendant was serving a sentence on unrelated charges. It appears from the docket that court personnel in the District Court failed to enter details concerning the warrant in the warrant management system as required by G. L. c. 276, § 23A. In January, 1993, while still incarcerated on the unrelated charges, the defendant signed a form requesting a speedy trial on the 1991 complaint. Although the District Court received the defendant's request, the form was not docketed and no action was taken on the request. A department of correction "summary/key issues" report dated April 14, 1993, stated that rape and burglary charges against the defendant were outstanding; however, subsequent "summary/key issues" reports issued between 1994 and 1997, which the defendant signed, stated that the defendant had "no outstanding legal issues."

The defendant completed his sentence on the unrelated charges and was released on June 21, 1997. Three days later, a second warrant for his arrest issued on the rape and burglary charges. The defendant was arrested and arraigned in District Court on the 1991 complaint on March 11, 1998. On April 10, 1998, however, the charges against him were dismissed without prejudice because the Commonwealth was unable to locate the rape victim.

The Commonwealth subsequently renewed contact with the victim and, on March 23, 1999, nearly one year following the dismissal of the charges, obtained aggravated rape and unarmed burglary indictments against the defendant. The defendant was arraigned in Superior Court on May 6, 1999. The defendant's trial began on May 5, 2003, where the issue was not whether

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intercourse occurred (the fact of intercourse was established by deoxyribonucleic acid [DNA] evidence and conceded by the defendant), but whether, as the defendant claimed, the victim consented to sexual intercourse in exchange for drugs. A jury convicted the defendant of the lesser included offense of rape, and acquitted him of unarmed burglary.

2. Standard of review. Counsel's performance is ineffective if it falls "measurably below that which might be expected from an ordinary fallible lawyer," and "likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) (Saferian). "A strategic or tactical decision by counsel will not be considered ineffective assistance unless the decision was 'manifestly unreasonable' when made." [Note 4] Commonwealth v. Roderiques, 462 Mass. 415, 425-426 (2012), quoting Commonwealth v. Watson, 455 Mass. 246, 256 (2009). To determine whether either prong of the Saferian test is implicated here, we consider the merits of the defendant's claim that the delay in bringing him to trial violated his constitutional right to a speedy trial.

3. Speedy trial analysis. [Note 5] (a) Threshold inquiry: "presumptive prejudice." "Simply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial

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has crossed the threshold dividing ordinary from 'presumptively prejudicial' delay." Doggett v. United States, 505 U.S. 647, 651-652 (1992) (Doggett), citing Barker v. Wingo, 407 U.S. 514, 530-531 (1972) (Barker). Once a defendant has established presumptive prejudice, courts apply the four-factor Barker test to evaluate whether the defendant's constitutional right to a speedy trial has, in fact, been violated. Doggett, supra. Further analysis of a speedy trial claim under Barker is necessary because "presumptive prejudice cannot alone carry a [speedy trial] claim," but is instead "part of the mix of relevant facts." Doggett, supra at 655-656.

Although the considerable delay leaves no doubt that a Barker inquiry is warranted, we take this opportunity to consider the precise length of delay in the present case. Thus, we address (1) when the defendant's speedy trial right attached, and (2) whether the time prior to the April, 1998, dismissal counts against the Commonwealth, to bring clarity to ambiguous points of law.

(i) Attachment. It is well-established that indictment or arrest starts the speedy trial clock. See United States v. Marion, 404 U.S. 307, 320 (1971) ("it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage[s]" right to speedy trial). What is less clear is whether a criminal complaint, a different type of accusatory pleading than that cited by the Supreme Court, similarly triggers a defendant's speedy trial right. See Rashad v. Walsh, 300 F.3d 27, 35-36 (1st Cir. 2002), cert. denied 537 U.S. 1236 (2003). See generally Mass. R. Crim. P. 3(g)(1), as amended by 442 Mass. 1502 (2004) (complaint process). This ambiguity stems from the "interchangeable use of the terms 'indictment' and 'filing of charges.' " Rashad v. Walsh, supra at 36, quoting United States v. MacDonald, 456 U.S. 1, 6-7 (1972) (MacDonald). See Doggett, supra at 655 ("arrest, indictment, or other official accusation" triggers right to speedy trial [emphasis supplied]). United States v. Marion, supra at 321 ("Invocation of the speedy trial provision thus need not await indictment, information or other formal charge" [emphasis supplied]). Given this ambiguity, courts have reached different

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conclusions [Note 6] concerning whether a criminal complaint constitutes a "formal charge" for the purposes of the attachment of a defendant's right to a speedy trial. [Note 7] Therefore, it is not surprising that some of our appellate decisions have stated that a criminal complaint triggers the right to a speedy trial. Compare Commonwealth v. Malone, 65 Mass. App. Ct. 285, 288 (2005); Commonwealth v. Willis, 21 Mass. App. Ct. 963, 964 (1986), and cases cited; and Commonwealth v. Conant, 12 Mass. App. Ct. 287, 289 (1981), and cases cited; with Commonwealth v. Look, 379 Mass. 893, 898, cert. denied 449 U.S. 827 (1980), citing United States v. Marion, supra at 320-321 (right to speedy trial attaches at indictment); and Commonwealth v. Gove, 366 Mass. 351, 353-354, 361 (1974) (same). Indeed, here, the motion judge stated that "the issuance of a District Court complaint is

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ordinarily sufficient to trigger the defendant's right to a speedy trial."

We conclude that a defendant's right to a speedy trial, at least under art. 11, attaches when a criminal complaint issues. Therefore, arrest, indictment, or a criminal complaint issued pursuant to Massachusetts law, whichever comes first, will start the speedy trial clock. Any cases to the contrary are no longer good law. See, e.g., Commonwealth v. Gove, supra. The constitutional right to a speedy trial attaches because the subject of a criminal complaint is undoubtedly an "accused," and is not merely in "the preaccusation period when a police investigation is ongoing." Commonwealth v. Gove, supra at 357, citing Commonwealth v. Jones, 360 Mass. 498 (1971). A criminal complaint is a formal charging document in Massachusetts. See Mass. R. Crim. P. 3(a). [Note 8] The fact that a complaint may be followed by an indictment, see Mass. R. Crim. P. 3(b), does not render a complaint any less of a formal accusation. Moreover, art. 11 does not distinguish between the types of cases (misdemeanor or felony; within the jurisdiction of the District or Superior Court) to which the right to a speedy trial attaches; it states that the right to a speedy trial applies to "[e]very subject of the [C]ommonwealth." Art. 11 of the Massachusetts Declaration of Rights. See Jacobson v. Winter, 91 Idaho 11, 14 (1966) (same, as to Idaho constitution). Of perhaps greatest significance, the subject of a criminal complaint typically faces the same "anxiety, concern, economic debilitation, public scorn and restraint on liberty" that the right to a speedy trial is intended to guard against. [Note 9] Commonwealth v. Gove, supra at 360. See

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Commonwealth v. Look, supra at 903. For these reasons, "no logical conclusion can be reached other than that the time within which an accused is to be secured in his right to a speedy trial must be computed from the time the complaint is filed against him." Jacobson v. Winter, supra. Therefore, the clock on the defendant's art. 11 right to a speedy trial began running on September 16, 1991, the date on which the District Court issued the criminal complaint charging him with rape and unarmed burglary. See Commonwealth v. Willis, supra.

(ii) Resume versus reset. The question whether the speedy trial clock "resumes or resets" arises in the context of formal charges that are brought, dismissed, and brought again. The issue is whether the time between an initial charge and dismissal ("resume," or "tolling" theory), or only the time following a reinstated, formal charge ("reset" theory), should count against the Commonwealth for purposes of a defendant's constitutional right to a speedy trial. [Note 10] We conclude that, as a general rule, the speedy trial clock "resumes" once a defendant is indicted following the dismissal of formal charges such that time between an initial, formal charge (or other triggering event such as an arrest) and dismissal counts against the government for speedy trial purposes after charges are reinstated. [Note 11] We reach this conclusion because the Supreme Court in MacDonald did not hold that the period prior to dismissal does not count against the government for purposes of determining whether a defendant's right to a speedy trial has been violated. Rather, the Court held that the interim period between dismissal of formal charges and subsequent reindictment or arrest on charges arising out of the same incident does not count against the speedy trial clock. MacDonald, supra at 7 n.7 (holding is consistent with Speedy Trial Act of 1974, 18 U.S.C. §§ 3161[d], 3161[h][6], which

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provides "that if charges are initially dismissed and later reinstated, the period between the dismissal and the reinstatement is not to be included in computing the time within which trial must commence" [emphasis added]). See United States v. Loud Hawk, 474 U.S. 302, 310-312 (1986), and cases cited (Loud Hawk). Like MacDonald, our decision in Burton v. Commonwealth, 432 Mass., 1008, 1008-1009 (2000) (Burton), did not address the "resume versus reset" issue, but instead merely stated the uncontroverted position that the speedy trial clock stops when the Commonwealth dismisses charges in good faith. [Note 12] Notwithstanding MacDonald's "good faith" qualifier, we think the "resume" theory expresses the better view because, "[w]ere it otherwise, the government would be able to nullify a defendant's speedy trial right by the simple expedient of dismissing and reindicting whenever speedy trial time was running out on its prosecution." United States v. Colombo, 852 F.2d 19, 23-24 (1st Cir. 1988). See United States v. Fuesting, 845 F.2d 664, 668 (7th Cir. 1988) (dismissal of charges tolls speedy trial right). Cf. United States v. Koller, 956 F.2d 1408, 1412-1413 (7th Cir. 1992); United States v. Wallace, 848 F.2d 1464, 1469 (9th Cir. 1988).

For these reasons, we conclude that the period of more than six and one-half years between the issuance of the criminal complaint and the dismissal of charges (September 16, 1991, to April 10, 1998), and the period of more than four years between the indictment and trial (March 23, 1999, to May 5, 2003) count against the government for the purposes of the defendant's constitutional right to a speedy trial. A total delay of over ten years is undoubtedly "presumptively prejudicial." See Doggett, supra at 652 n.1.

(b) Analysis under Barker. We turn to the test set forth in

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Barker to determine whether the defendant's right to a speedy trial has been violated. This test balances (i) the length of the delay, (ii) the reasons for delay, (iii) the defendant's assertions of his speedy trial right, and (iv) the prejudice to the defendant (in light of Doggett). See Commonwealth v. Look, 379 Mass. 893, 897-898 (1980), citing Barker, supra at 530-533. We consider each factor in turn.

(i) Length of the delay. Length of delay "is actually a double enquiry." Doggett, supra at 651. It first bears on whether a speedy trial analysis is triggered, and is again considered to "the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the [speedy trial] claim." Id. at 651-652. We need not tarry here, as a ten-year delay, as the Commonwealth concedes, clearly weighs heavily against the Commonwealth.

(ii) Reasons for delay. The Commonwealth has said that its own negligence caused seven and one-half years of delay. [Note 13] In so stating, the Commonwealth implicitly recognizes that it is not only prosecutorial delay that may count against the Commonwealth for purposes of a defendant's right to a speedy trial. See Barker, supra at 531. "The Commonwealth, in the performance of its public trust . . . [has] some 'duty to coordinate the efforts of its various criminal divisions.' " Commonwealth v. Willis, 21 Mass. App. Ct. 963, 964-965 (1986), quoting Brady v. Maryland, 291 Md. 261, 267 (1981). See G. L. c. 276, § 23A (warrant management system). Therefore, the Commonwealth cannot elude accountability for the delay in this case even though the prosecution was not responsible for the issuance of the complaint or the lodging of the warrant against the defendant while he was incarcerated. Moreover, we count against the Commonwealth the fact of the District Court's receipt of the defendant's request for a speedy trial but failure to docket it.

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Nevertheless, the second prong of the Barker test weighs only lightly against the Commonwealth. Although "our toleration of . . . negligence varies inversely with its protractedness, . . . negligence is obviously to be weighed more lightly than a deliberate intent to harm the accused's defense." Doggett, supra at 657. There is no evidence of intentional delay or bad faith on the part of the Commonwealth on these facts. Moreover, although we do not focus merely on the conduct of the prosecution, we do accord greater weight to delay attributable to the prosecution than to other public actors (whether law enforcement or the courts). See Barker, supra at 531 (although court congestion factors against government, it weighs less heavily than prosecution's conduct). Therefore, the first period of six and one-half years (from criminal complaint to dismissal) weighs less heavily against the Commonwealth than the second period of four years (from indictment to trial). Moreover, in the latter period in which the prosecution was involved in the defendant's case, most of the delays were either at the defendant's request or by agreement of the defendant's counsel. Butler I, supra at 664-665 (attributing only 310 days of delay to prosecution).

(iii) Defendant's assertions of his right to a speedy trial. It is undisputed that the defendant signed a form requesting a speedy trial on the present charges in January, 1993, while he was incarcerated on unrelated charges. Although we do not, in the defendant's words, "insist[] that a defendant must storm the [c]ourthouse and batter down the doors to preserve his right to a speedy trial," we do require more than the defendant's soft assertion of his right to a speedy trial. We agree with the Appeals Court in Butler I, supra at 664, "that the defendant must bear some of the responsibility because he failed to make any inquiry regarding the status of his request for a speedy trial." [Note 14] See

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Commonwealth v. Lauria, 411 Mass. 63, 67-69 (1991) (defendant acquiesced in delay in failing to inquire about status of Mass. R. Crim. P. 36 motion). Granted, the department of correction "summary/key issues" reports issued since 1994 stated that the defendant had "no outstanding legal issues." However, the fact that prior department of correction "summary/key issues" reports (for example, a report dated April 14, 1993) stated that rape and burglary charges against the defendant were outstanding suggests that the defendant was aware at least of the possibility of pending charges, and that he intended to take advantage of the government's silence or error to "fly under the radar" to avoid prosecution. See Commonwealth v. Look, supra at 900 (late assertion of right to speedy trial indicates that defendant was "gambling" that Commonwealth forgot about him). The defendant's acquiescence in the delay in bringing him to trial, thus, weighs slightly against him and, moreover, extenuates the presumptive prejudice. See Doggett, supra at 658.

(iv) Prejudice to the defendant. Although the right to a speedy trial is "not primarily intended to prevent prejudice to the defense caused by passage of time," MacDonald, supra at 8, there remains a concern that unreasonable delay between formal accusation and trial carries the "possibility that the defense will be impaired . . . [which] skews the fairness of the entire system." [Note 15] Barker, supra at 532. Thus, although the defendant is not entirely absolved of responsibility to present some particularized prejudice at this stage of the analysis, he is entitled to some degree of presumptive prejudice that the Commonwealth can rebut with evidence that any delay left the defendant's "ability to defend himself unimpaired." Doggett, supra at 658 n.4. Moreover, the

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passage of time is a double-edged sword. While at once affecting the defense, delay in bringing a case to trial may also make it more difficult, sometimes impossible, for the prosecution to carry its burden of proof beyond a reasonable doubt. See Loud Hawk, supra at 315.

Here, the defendant makes only general claims that his ability to defend himself was impaired based on some missing evidence, the unavailability of unspecified witnesses, and the dimming of several witnesses' memories. The Commonwealth has conceded that the loss of cushions from the couch where intercourse occurred, photographs of the door the defendant allegedly kicked in, and the written pages of the rape kit used by the hospital where the victim received treatment following the incident with the defendant have been lost due its negligence.

Where the defendant conceded intercourse (and his admission is corroborated by DNA evidence), the loss of these items (with the possible exception of the photographs) can hardly be seen as prejudicial. Moreover, the Commonwealth has established that "nothing in the record before us . . . suggests that the delay in bringing the defendant to trial precluded him from advancing his best defense." Butler I, supra at 667. The percipient witnesses to the rape (the defendant and the victim) were available and testified at trial; the potential significance to the defense of the testimony of the unspecified witnesses is unknown. See Commonwealth v. Look, supra at 901. Similarly, it is unclear how the loss of the couch cushions impaired the defense, and the acquittal on the burglary charge and conviction of the lesser included offense of rape (as opposed to aggravated rape) suggests that the loss of the photographs of the door actually inured to the defendant's benefit. That the victim was unable to remember some details of the rape was offset by her ability to recall several statements the defendant made during intercourse that went to the crucial issue of consent. See Loud Hawk, supra; Commonwealth v. Gove, 366 Mass. 351, 364 (1974) (no significant failure of memory on crucial issues). What is more, whether intercourse is consensual is not a subject typically vulnerable to memory loss. Because all elements essential for a fair trial were available and any impairment to the defense is speculative at best, we conclude that the Commonwealth

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effectively rebutted the presumption of prejudice and that the prejudice factor counts against the defendant. See Commonwealth v. Gove, supra at 365; Commonwealth v. Willis, 21 Mass. App. Ct. 963, 965-966 (1986), and cases cited.

Moreover, there is nothing in the record to suggest that the defendant suffered a substantial deprivation of liberty on account of the issuance of the criminal complaint, particularly in the first period of six and one-half years, much of which he spent incarcerated on other charges. The record indicates that the defendant was not incarcerated on the 1991 complaint at any point during the delay prior to his trial, and was only subject to bail for one month (March 11, 1998, to April 10, 1998). Moreover, although the lodging of a warrant on a criminal complaint for a person incarcerated at a prison or correctional facility may result in decreased freedom even within the confines of the prison or correctional facility, there is nothing to suggest that such was the case here. See, e.g., Smith v. Hooey, 393 U.S. 374, 378-379 (1969); L.W. Yackle, Taking Stock of Detainer Statutes, 8 Loy. L.A. L. Rev. 88, 91-92 (1975). To the contrary, the defendant's acquiescence in the delay (in failing to strongly assert his speedy trial right and in assenting to postindictment delay) suggests that he did not experience the disruption of life often associated with pending criminal charges. See Doggett, supra at 663 (Thomas, J., dissenting). See also MacDonald, supra at 8, 11; Commonwealth v. Gove, supra at 360, 365. For these additional reasons, we ascertain no prejudice to the defendant.

4. Conclusion. In sum, although the delay from the attachment of the right to a speedy trial in September, 1991, to his trial in May, 2003 (excluding the period during which charges were dismissed), was lengthy, the Barker factors, applied in their totality, do not establish that the defendant's constitutional right to a speedy trial was violated. Therefore, because the decision not to advance a losing argument does not fall "measurably below that which might be expected from an ordinary fallible lawyer," and because the defendant was not "deprived of an otherwise available, substantial ground of defence" by virtue of his counsel's decision not to advance a constitutional speedy trial argument on direct appeal, we conclude that the defendant

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was not denied the effective assistance of counsel. [Note 16] Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Therefore, the order denying his motion for a new trial is affirmed.

So ordered.