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SJC-12428
SJC-12433

                COMMONWEALTH vs. KEVIN GRAHAM, JR.
                    (and five companion cases1).



         Suffolk.       April 2, 2018. - September 13, 2018.

         Present:   Gants, C.J., Gaziano, Lowy, Budd, Cypher,
                             & Kafker, JJ.


Constitutional Law, Speedy trial. Practice, Criminal, Speedy
     trial, Dismissal. Witness, Unavailability. Evidence,
     Failure to prosecute.



     Indictments found and returned in the Superior Court
Department on June 10, 2016.

     Motions to dismiss were heard by Douglas H. Wilkins, J.

     The Supreme Judicial Court granted applications for direct
appellate review.


     Sarah Montgomery Lewis, Assistant District Attorney (Masai-
Maliek King, Assistant District Attorney, also present) for the
Commonwealth.
     Patrick Levin, Committee for Public Counsel Services, for
Kevin Graham, Jr.
     Claudia Leis Bolgen for Ellis Golden.

     1 Two against Kevin Graham, Jr., and three against Ellis
Golden.
                                                                    2


     William M. Jay & Gerard J. Cedrone, of New York, & Chauncey
B. Wood & Kevin P. Martin, for Massachusetts Association of
Criminal Defense Lawyers, amicus curiae, submitted a brief.


    GANTS, C.J.    Rule 36 of the Massachusetts Rules of Criminal

Procedure, as amended, 422 Mass. 1503 (1996) (rule 36), provides

that, if a criminal defendant is not tried "within twelve

months" after arraignment, "he shall be entitled upon motion to

a dismissal of the charges."    Mass. R. Crim. P. 36 (b) (1) (C).

A defendant may establish a prima facie violation of rule 36 by

demonstrating that more than twelve months have elapsed between

arraignment and trial.   See Commonwealth v. Denehy, 466 Mass.

723, 729 (2014).   The burden then shifts to the Commonwealth to

justify the delay, either by showing that it falls within one of

the "excluded periods" enumerated under rule 36 (b) (2) or by

showing that "the defendant acquiesced in, was responsible for,

or benefited from the delay."    Commonwealth v. Spaulding, 411

Mass. 503, 504 (1992).   "A failure to object to a continuance or

other delay constitutes acquiescence."    Commonwealth v. Tanner,

417 Mass. 1, 3 (1994).

    The defendants in these companion cases, Kevin Graham, Jr.,

and Ellis Golden, were indicted for murder in the first degree.

At arraignment, a presumptive trial date was set for June 12,

2017.   Thereafter, the parties also scheduled various pretrial

events, such as motion hearings and status conferences, but the
                                                                      3


presumptive trial date did not change, and the trial was never

continued.    On June 12, the Commonwealth was not ready for trial

because of the unavailability of an essential out-of-State

witness.    The Commonwealth moved to continue the trial so that

it would have more time to secure the witness's appearance at

trial.     The judge denied the motion to continue, finding that

the Commonwealth had failed to exercise due diligence in

securing the witness's appearance, but agreed to empanel a jury

and commence trial one week later if the Commonwealth were able

to produce the witness.     The Commonwealth was unable to do so.

    The defendants subsequently moved to dismiss, as more than

one year had elapsed since their arraignments.     The Commonwealth

opposed the motions, arguing that much of that time should be

excluded from the rule 36 calculation, because the defendants

had failed to object when the various pretrial events were

scheduled and, therefore, had acquiesced in the delay.     The

judge allowed the motions to dismiss with prejudice on two

separate grounds.    He concluded that the defendants' right to a

speedy trial under rule 36 had been violated, because the

defendants could not have acquiesced in any delay where the

presumptive trial date never changed.    He also concluded that

the defendants were entitled to dismissals for the

Commonwealth's failure to prosecute.
                                                                    4


    We vacate the dismissals and remand the cases for trial.

We conclude that the judge effectively continued the trial for

one week and that, because an essential witness resisted

appearing at trial, this period should be excluded under rule

36 (b) (2) (B) or (F), placing the Commonwealth within the time

limits of rule 36.   We also conclude that the judge abused his

discretion in dismissing the indictments for failure to

prosecute where the Commonwealth's lack of diligence in

producing the witness did not rise to the level that would

warrant dismissal, especially where the indictments are for

murder, where barely one year had passed since the defendants'

arraignments, and where the trial had been continued for only

one week.

    We also hold that time can be excluded under rule 36 based

on a defendant's acquiescence only where the defendant has

agreed to or failed to object to a continuance or other delay,

and that the scheduling of an event alone does not constitute

delay.   Thus, a defendant need not object every time an event is

scheduled in order to preserve his or her rights under rule 36.

We further hold that, where the defendant has acquiesced, a
                                                                     5


delay can be excluded under rule 36 even where it does not

affect the presumptive trial date.2

     Background.     We summarize the facts as found by the motion

judge, supplemented with uncontroverted evidence that was

implicitly credited by the judge and is consistent with his

ultimate findings.    See Commonwealth v. Jones-Pannell, 472 Mass.

429, 431 (2015).     We also summarize the prior proceedings, as

recorded in the docket and the clerk's minutes.     See

Commonwealth v. Roman, 470 Mass. 85, 93 (2014) ("For purposes of

a rule 36 calculation . . . , the docket and the clerk's log are

prima facie evidence of the facts recorded therein").

     In the early morning hours of August 12, 2004, Thomas

Hawkins (victim) was shot and killed, and his wallet stolen.

The police recovered the victim's wallet from a nearby school

yard later that day; according to the Commonwealth, the wallet

was empty, apart from some personal papers.

     The police investigation was unable to identify any

material leads in the case until December, 2006, when Juan

Garcia offered to provide the police with information about the

killing in return for consideration in his pending narcotics

case.    No agreement was reached at that time with Garcia, and he

was subsequently tried and convicted.

     2 We acknowledge the amicus brief submitted by the
Massachusetts Association of Criminal Defense Lawyers.
                                                                    6


    However, in 2007 Garcia met with the police again and

agreed to testify before a grand jury.    In his grand jury

testimony, Garcia stated that, at the time of the killing, he

heard gunshots and observed two men -- whom he knew and

identified as the defendants -- fleeing from the area where the

victim's body was found.    He also testified that he saw the

defendants passing a wallet between themselves, and that Graham

was holding a firearm.     Garcia told the grand jury that he was

cooperating with the Commonwealth in exchange for its support of

his motion to revise and revoke the sentence he was serving in

his narcotics case.   However, no indictments were returned by

that grand jury against the defendants, and the Commonwealth

apparently did not provide Garcia with the assistance he

anticipated.

    In 2015, another grand jury was convened to investigate the

killing.   Because Garcia was then living in Florida, the

Commonwealth read his prior grand jury testimony into the record

rather than call him to testify.    On June 10, 2016, the grand

jury indicted the defendants for murder in the first degree, as

well as armed robbery and unlawful possession of a firearm.
                                                                    7


     The Commonwealth's case rested heavily on the testimony of

Garcia, the sole identification witness.3   The Commonwealth had

no forensic evidence identifying either defendant as the

perpetrator of the crimes.

     Golden was arraigned on June 20, 2016, and Graham on June

22, 2016.    Pursuant to Superior Court Standing Order 2-86, all

criminal cases in the Superior Court are required to be assigned

to a "case track" at arraignment, thereby establishing a

presumptive timeline for disposition of the case.   See Superior

Court Standing Order 2-86, Part III (2009).   The defendants'

cases were designated as "C" track cases, with the following

presumptive schedule:    a pretrial conference on July 14, 2016; a

first pretrial hearing on December 13, 2016; a final pretrial

hearing on June 1, 2017; and a presumptive trial date of June

12, 2017.4

     The pretrial conference and first pretrial hearing were

held as scheduled.    On May 11, 2017, the Commonwealth filed its

first motion to continue the presumptive trial date, stating

     3 According to the Commonwealth, two other individuals
confirmed to the police that Garcia was where he said he was at
the time of the shooting, but neither offered any information
regarding the identities of the persons involved in the killing.

     4 Cases are assigned to tracks "A", "B," or "C" based on the
offense charged in the indictment, and on consideration of any
extenuating or special circumstances raised by the parties.
Murder cases are presumptively assigned to track "C." Superior
Court Standing Order 2-86, Part III (2009).
                                                                     8


that it needed more time to test deoxyribonucleic acid (DNA)

evidence found in the victim's shorts.   The motion was denied.

    The final pretrial hearing was held as scheduled, on June

1, 2017, and the presumptive trial date of June 12 was confirmed

as the actual trial date.   On June 8, the Commonwealth informed

the court room clerk that it was unable to proceed to trial

because it could not secure Garcia's attendance.   At a hearing

on June 9, the Commonwealth stated that it would file a motion

to continue, which it did on June 12, the trial date.

    In its motion to continue, the Commonwealth made the

following factual representations:   Although members of the

Boston police department had been "in regular contact" with

Garcia since 2015, their last communication with Garcia had been

in April, 2017.   Once the Commonwealth's first motion to

continue was denied on May 11, 2017, the police attempted later

that month to contact Garcia to secure his attendance at trial.

After several unsuccessful attempts to communicate with Garcia

by telephone, the police decided to send an officer to Florida

on June 7, but the officer was unable to locate Garcia.     On the

afternoon of June 8, the officer received a telephone call from

Garcia, who, in "a curse laden tirade," accused the officer of
                                                                   9


going to his workplace and of "harassing" his family members.5

Garcia then told the officer that he did not "want to be

bothered any longer regarding these matters."6

     After a nonevidentiary hearing, the judge denied the motion

to continue.   The judge found that the Commonwealth had failed,

"despite clear warning signs," to compel Garcia's attendance

through interstate process and that it had therefore failed to

exercise due diligence in producing a material witness.

However, although he denied the motion to continue, the judge

scheduled a "status conference" for June 19, and declared that

he would empanel a jury and commence trial on that date if the

Commonwealth were "ready to go."

     Following the hearing on June 12, the Commonwealth

contacted a Florida State Attorney's office in an attempt to

effectuate the interstate process that the judge had approved.

An investigator for that office went to Garcia's address on June

15 but was unable to serve him; the investigator said he spoke


     5 The Commonwealth maintains that the police officer did not
go to Garcia's workplace. The Commonwealth has represented
that, in attempting to locate Garcia, the officer told persons
associated with Garcia only that he was "a friend of his from
Boston."

     6 On June 16, 2017, the prosecutor submitted an affidavit
that reiterated these factual representations. The judge did
not make any factual findings whether these representations were
true but found that he did not need to, because he would deny
the motion even were he to accept them as true.
                                                                    10


with someone who indicated that Garcia lived there but was not

there at the time.   On June 15, Boston police received a

telephone call from Garcia, who said, "Leave me the fuck alone;

fuck you," and then hung up the telephone.

    On June 19, the prosecutor informed the judge that the

Commonwealth was not ready for trial because it was still

searching for Garcia.   The prosecutor made an oral motion to

continue, which the judge denied.

    On June 22, 2017, 367 days after his arraignment, Golden

filed a motion to dismiss for violation of rule 36 and for

failure to prosecute.   On June 26, 369 days after his

arraignment, Graham filed a similar motion.     In opposing these

motions, the Commonwealth made two arguments.    First, the

Commonwealth argued that it had exercised due diligence in

attempting to secure Garcia's attendance at trial, noting that

Garcia had been "actively avoiding" being located and served.

Second, the Commonwealth argued that almost all of the time that

had elapsed since the defendants' arraignments should be

excluded under rule 36, because the defendants, in failing to

object to the scheduling of various pretrial events, had

acquiesced in the delay.   With respect to this second argument,

the Commonwealth rested solely on "waiver and acquiescence"; it
                                                                  11


did not argue that any time should be excluded because it fell

within an "excluded period" under rule 36 (b) (2).7

     The judge allowed the rule 36 motion, dismissing the

indictments against both defendants with prejudice.   The judge

concluded that, because there had been no change to the

presumptive trial date, there was no time that could be

excluded, whether under rule 36 (b) (2) or based on the

defendants' acquiescence.8   The judge also allowed the

defendants' motions to dismiss for failure to prosecute.    He

declared that the "crucial" factor in this decision was the

Commonwealth's failure to exercise due diligence in securing

Garcia's attendance at trial, combined with what he

characterized as the unlikelihood that the Commonwealth "will

     7 At the hearing on the defendants' motions to dismiss, the
judge asked the prosecutor, "Are there any specifically
enumerated events in [rule 36 (b) (2)] that you are relying on,
or is it just waiver and acquiescence?" to which the prosecutor
replied, "It's waiver and acquiescence, Your Honor." Moreover,
in its oppositions to the defendants' motions to dismiss, the
Commonwealth argued only that time should be excluded based on
"the defendant's agreement to, acquiescence in, or benefit from
the delay." In its charts accompanying its oppositions, where
the Commonwealth detailed its calculations of time under rule
36, it made no mention of any excluded periods under rule
36 (b) (2).

     8 The judge rested his dismissal for lack of a speedy trial
solely on rule 36 grounds; the judge did not find a
constitutional speedy trial violation, and the defendants make
no constitutional claim. If the defendants had made such a
claim, we would be obliged to consider it even though we
conclude that there was no rule 36 violation. See Commonwealth
v. Dirico, 480 Mass.    ,    (2018).
                                                                      12


improve its lackluster efforts to date or exercise due diligence

to produce an increasingly hostile witness."     He also declared

that the dismissals for failure to prosecute would have been

without prejudice "[b]ut for the rule 36 violation."

    The Commonwealth filed a notice of appeal in these cases,

and we granted the defendants' applications for direct appellate

review.

    Discussion.   1.    Rule 36.   Rule 36 is a "[case] management

tool, designed to assist the trial courts in administering their

dockets."   Barry v. Commonwealth, 390 Mass. 285, 295-296 (1983),

quoting Reporters' Notes to Mass. R. Crim. P. 36, Mass. Ann.

Laws, Rules of Criminal Procedure, at 525 (1979).     It also

"creates a means through which [criminal] defendants who desire

a speedy trial can secure one."    Barry, supra at 296.    Under

rule 36, "a criminal defendant who is not brought to trial

within one year of the date of arraignment is presumptively

entitled to dismissal of the charges unless the Commonwealth

justifies the delay."   Spaulding, 411 Mass. at 504.9     See Mass.

R. Crim. P. 36 (b) (1) (C), (D).    Dismissal under rule 36 is


    9  Rule 36 provides that "a defendant shall be tried within
twelve months after the return day in the court in which the
case is awaiting trial." Mass. R. Crim. P. 36 (b) (1) (C), as
amended, 422 Mass. 1503 (1996). Where the defendant is under
arrest, as here, the return day is the date of arraignment. See
Mass. R. Crim. P. 2 (b) (15), as amended, 397 Mass. 1226 (1986).
See also Commonwealth v. Mattos, 404 Mass. 672, 674 (1989).
                                                                   13


with prejudice.   Commonwealth v. Lauria, 411 Mass. 63, 71

(1991).

     Here, the defendants have established a prima facie

violation of rule 36 because they were not brought to trial

within twelve months of arraignment.     The burden therefore

shifts to the Commonwealth to justify the delay.     Denehy, 466

Mass. at 729.   In Golden's case, the period between his

arraignment on June 20, 2016, and the filing of his motion to

dismiss on June 22, 2017, was 367 days; subtracting twelve

months (i.e., 365 days) from this period leaves only two days

that the Commonwealth must justify.    In Graham's case, the

period between his arraignment on June 22, 2016, and the filing

of his motion to dismiss on June 26, 2017, was 369 days, leaving

only four days for the Commonwealth to justify.10,11

     There are two separate ways in which the Commonwealth can

meet its burden of justifying a delay, thereby excluding it from

the calculation of time under rule 36.

     10The filing of a motion to dismiss under rule 36 tolls the
running of the time in which the defendant must be tried. Barry
v. Commonwealth, 390 Mass. 285, 294 (1983).

     11In making our calculations, we adhere to rule 36 (b) (3),
which provides: "In computing any time limit other than an
excluded period, the day of the act or event which causes a
designated period of time to begin to run shall not be included.
Computation of an excluded period shall include both the first
and the last day of the excludable act or event." However,
"[i]f there are excludable periods of delay which overlap, a day
is excluded only once." Barry, 390 Mass. at 292.
                                                                    14


    a.   Excluded periods under rule 36 (b) (2).    The first way

to justify a delay is to show that the delay falls within one of

the "excluded periods" specifically enumerated under rule

36 (b) (2).    Such periods include, for example, "delay[s]

resulting from interlocutory appeals," "delay[s] resulting from

hearings on pretrial motions," and "delay[s] . . . during which

any proceeding concerning the defendant is actually under

advisement."   Mass. R. Crim. P. 36 (b) (2) (A) (iv), (v), (vii).

    The judge declared that no time could be excluded under

rule 36 (b) (2) unless the act or event triggering the exclusion

resulted in delay of the presumptive trial date.    This was

error.   As we have consistently recognized, "once [the

Commonwealth] establishes that an act or event triggers an

excludable period of time [under rule 36 (b) (2)], the exclusion

of the period is automatic."    Barry, 390 Mass. at 292.12    See

Denehy, 466 Mass. at 729 n.6; Commonwealth v. Farris, 390 Mass.

300, 304 n.3 (1983).    Because there are a "multitude of factors

[that] might influence the date a trial commences," the


    12 As stated in the Reporter's Notes to rule 36 (b) (2):
"[T]he court is given the discretion to consider and determine
whether a proffered explanation for delay is a valid excluded
period. But once it is determined that a period of delay is
within the contemplation of [rule 36 (b) (2)], that period shall
be excluded from computation of the twelve-month limit."
Reporter's Notes to Mass. R. Crim. P. 36 (b) (2), Massachusetts
Rules of Court, Rules of Criminal Procedure, at 210 (Thomson
Reuters 2018).
                                                                    15


Commonwealth need not establish whether that act or event had

any effect on the trial date -- or, for that matter, the

presumptive trial date.   Barry, supra at 292-293.   Rather, the

exclusions identified in rule 36 (b) (2) are premised on the

belief that certain acts or events are "certain to result in

delay," or are "beyond [the Commonwealth's] control," such that

any time that elapses as a result of those acts or events should

not be counted against the Commonwealth.    Reporter's Notes to

Mass. R. Crim. P. 36 (b) (2), Massachusetts Rules of Court,

Rules of Criminal Procedure, at 210-211 (Thomson Reuters 2018)

("The rationale underlying [rule 36 (b) (2)] is that the

Commonwealth should not be penalized when the defendant elects

to avail himself of those procedures").    The automatic exclusion

of these time periods "allows all parties to calculate with

reasonable certainty the date within which the defendant must be

tried."   Barry, supra at 292.   If we were to exclude time under

rule 36 (b) (2) only where an act or event is shown to have

resulted in an actual delay of the presumptive trial date, the

parties to a criminal case might not be able to calculate

whether the allowable 365 days had elapsed until it was too late

to avoid dismissal of the case.13


     13Keeping a contemporaneous calculation of excludable delay
under rule 36 (b) (2) is also important where a defendant, after
a dangerousness hearing, is ordered to be held in pretrial
                                                                  16


     We reiterate, however, that the burden is on the

Commonwealth to demonstrate that a delay should be excluded

under rule 36 (b) (2).   Denehy, 466 Mass. at 729.   Here, the

judge concluded that the Commonwealth had disclaimed reliance on

rule 36 (b) (2).   We agree that, because the Commonwealth did

not specifically argue for exclusions under rule 36 (b) (2) when

it opposed the defendants' motions to dismiss, see note 7,

supra, most of these exclusions have been waived.    The

Commonwealth's waiver is of consequence because, for example,

the Commonwealth could have sought to exclude the time required

to hear and rule on the defendants' pretrial motions -- which,

based on the record, could have been as much as thirty-two days

in Golden's case14 and forty-seven days in Graham's case15 --



detention pending trial under G. L. c. 276, § 58A. Under
§ 58A (3), a person so detained "shall be brought to a trial as
soon as reasonably possible, but in absence of good cause, the
person so held shall not be detained for a period exceeding 120
days excluding any period of delay as defined in [rule
36 (b) (2)]."

     14An excludable delay under rule 36 (b) (2) (A) (v) is
calculated as the time between "the date on which the request
for hearing on the pretrial motion is filed, or, if no such
request is filed, from the date the hearing is ordered, until
the conclusion of the hearing." See Reporter's Notes to Mass.
R. Crim. P. 36 (b) (2) (A) (v), supra at 211.

     The docket indicates that Golden filed a motion to dismiss
on October 25, 2016, but does not indicate whether a request for
hearing was filed. At the first pretrial hearing on December
13, 2016, a hearing on Golden's motion was scheduled for January
11, 2017. The hearing was held as scheduled, and the motion was
                                                               17



denied on January 13, 2017. Assuming that there was no request
for hearing and that the hearing was ordered at the first
pretrial hearing, the Commonwealth could have sought to exclude
the thirty days between December 13, 2016, and the motion
hearing on January 11, 2017, under rule 36 (b) (2) (A) (v). The
Commonwealth could have also sought to exclude the two days
between the hearing on January 11, 2017, and the ruling on
January 13, 2017, when the matter was "under advisement," under
rule 36 (b) (2) (A) (vii).

    15 The docket indicates that Graham filed a motion under
Mass. R. Crim. P. 14, as appearing in 442 Mass. 1518 (2004)
(rule 14), for updated pretrial discovery on February 16, 2017,
and that the motion was heard on March 23, 2017, but does not
indicate when the hearing was requested or ordered. Graham
filed a second rule 14 motion on April 25, 2017; that same day,
a motion hearing was scheduled for May 2, 2017. That hearing
was later rescheduled to May 11, 2017, when both motions were
allowed. As to the first motion, the Commonwealth could have
sought to exclude thirty out of the fifty days between the
motion hearing on March 23, 2017, and the ruling on May 11,
2017, when the matter was "under advisement," under rule
36 (b) (2) (A) (vii). As to the second motion, the Commonwealth
could have sought to exclude the seventeen days between when the
hearing was scheduled on April 25, 2017, and when the hearing
was held on May 11, 2017, under rule 36 (b) (2) (A) (v).

     Having said that, because Graham's rule 14 motions sought
discovery that was mandatory under rule 14 (a) (1) (A),
including Garcia's address, it is far from clear that the
Commonwealth could have successfully excluded this time. In
Commonwealth v. Taylor, 469 Mass. 516, 528 (2014), we declared
that where the Commonwealth fails timely to produce mandatory
discovery and the defendant moves for sanctions or to compel
under rule 14 (a) (1) (C), "the time it takes to resolve the
rule 14 (a) (1) (C) motion shall not be excluded automatically
[under rule 36 (b) (2)] from the ultimate speedy trial
calculation." Instead, "[the] motion judge is responsible for
determining whether any delay occasioned by the resolution of
that motion should, in fact, toll the speedy trial clock" by
assessing "whether 'the ends of justice served' by exclusion of
time spent on a rule 14 (a) (1) (C) motion brought to compel
mandatory discovery 'outweigh[] the best interests of the public
and the defendant in a speedy trial.'" Id., quoting Mass. R.
Crim. P. 36 (b) (2) (F). Here, Graham did not specifically
                                                                  18


under rule 36 (b) (2) (A) (v) and (vii).   Exclusion of these

time periods would have placed the Commonwealth well within the

time limits of rule 36, but because the Commonwealth waived

these exclusions before the motion judge, it cannot now seek to

exclude that time.

    However, there are some exclusions under rule 36 (b) (2)

that the Commonwealth cannot be held to have waived, because of

the unusual posture of these cases and because the Commonwealth

did in substance make arguments in support of these exclusions.

Specifically, we conclude that the time period between the trial

date on June 12, 2017, and the "status conference" on June 19,

2017, should be excluded under either of two exclusions

contained in rule 36 (b) (2).



frame his motions as motions for sanctions or to compel under
rule 14 (a) (1) (C), as he should have to ensure that the time
would not be excluded under rule 36 (b) (2). See Taylor, supra
at 527 ("A defendant yet to receive all mandatory discovery must
. . . take proactive steps to alert the court and the
prosecution that certain items have not been timely produced,
and the vehicle for doing so is a motion for sanctions or to
compel pursuant to rule 14 [a] [1] [C]"). Perhaps for this
reason, there is no indication in the record that the motion
judge made any determination whether the time taken to resolve
Graham's rule 14 motions should be excluded under rule
36 (b) (2). Although a judge might still find that Graham's
rule 14 motions were in substance motions to compel mandatory
discovery under rule 14 (a) (1) (C), and that the resulting
delay should not be excluded under rule 36 (b) (2), the
Commonwealth could have argued that Graham did not "avail
himself of the remedies outlined in rule 14," as required under
Taylor, supra, and therefore that the clock should have been
tolled.
                                                                     19


       The first such exclusion is found in rule 36 (b) (2) (B),

which provides that "[a]ny period of delay resulting from the

absence or unavailability of the defendant or an essential

witness" shall be excluded from the rule 36 calculation.      Rule

36 (b) (2) (B) states further:

       "A defendant or an essential witness shall be considered
       absent when his whereabouts are unknown and he is
       attempting to avoid apprehension or prosecution or his
       whereabouts cannot be determined by due diligence. A
       defendant or an essential witness shall be considered
       unavailable whenever his whereabouts are known but his
       presence for trial cannot be obtained by due diligence or
       he resists appearing at or being returned for trial."

Importantly, an exclusion under rule 36 (b) (2) (B) is

"established by a party on motion for a continuance."

Reporter's Notes to Mass. R. Crim. P. 36 (b) (2) (B), supra at

211.

       In filing its motion to continue on June 12, 2017, the

Commonwealth vigorously argued that the trial date should be

continued because Garcia -- a witness who was essential to the

Commonwealth's case -- was unavailable.    The Commonwealth

specifically sought a continuance so that it would have

additional time to effectuate interstate process and secure

Garcia's appearance at trial.    The judge denied the motion to

continue the June 12 trial date, but also declined to empanel a

jury on that date or to dismiss the cases.    Instead, the judge

gave the Commonwealth another week to secure Garcia's
                                                                     20


appearance, setting a "status conference" for June 19, and

informing the prosecutor that if the Commonwealth was "ready to

go" on that date, he would empanel a jury.     The judge declined

to characterize this one-week period between June 12 and June 19

as a continuance, specifically declaring, "I've denied [the

Commonwealth's] motion for a continuance."     He instead

characterized it as a "wait and see" period.     We fail to see the

distinction.   We conclude that, for all practical purposes, the

judge granted the Commonwealth a one-week continuance, with

trial to begin on June 19 if the Commonwealth could produce

Garcia.

     Thus, the strange posture of these cases is that, although

the judge denied the Commonwealth's motion to continue, he did

in effect allow the Commonwealth additional time to secure

Garcia's appearance.    If the judge had called this one-week

period what it was -- a continuance -- then the Commonwealth

could have sought to exclude that period under rule

36 (b) (2) (B), as a "delay resulting from the . . .

unavailability of . . . an essential witness."    There is no

doubt that Garcia is an essential witness in these cases.16     He

was also unavailable.   As earlier stated, an essential witness


     16In his order allowing the defendants' motions to dismiss,
the judge stated, "The Court has no difficulty concluding that
. . . Garcia is a necessary and material witness."
                                                                  21


whose whereabouts are known is considered "unavailable" under

rule 36 (b) (2) (B) "whenever . . . his presence for trial

cannot be obtained by due diligence or he resists appearing at

or being returned for trial" (emphasis added).   In denying the

Commonwealth's motion to continue, the judge concluded that the

Commonwealth had failed to exercise due diligence in securing

Garcia's appearance at trial.   However, we need not consider

whether this was an abuse of discretion because there is

undisputed evidence in the record indicating that Garcia

resisted appearing at trial, which provides an adequate

independent ground for excluding time under rule 36 (b) (2) (B).

The period between June 12 and June 19 is therefore excludable

under rule 36 (b) (2) (B).

     Alternatively, the period between June 12 and June 19 could

also fall under rule 36 (b) (2) (F), which excludes "[a]ny

period of delay resulting from a continuance granted by a judge

. . . , if the judge granted the continuance on the basis of his

findings that the ends of justice served by taking such action

outweighed the best interests of the public and the defendant in

a speedy trial."17   In filing its motion to continue on June 12,




     17A period of delay resulting from a continuance may be
excluded under rule 36 (b) (2) (F) only if "the judge sets forth
in the record of the case, either orally or in writing, his
reasons for finding that the ends of justice served by the
                                                                    22


the Commonwealth argued that a continuance "[would] not impact

the defendants' rights to a speedy trial."   And again, although

the judge denied that motion to continue, he did allow the

Commonwealth another week to produce Garcia.   In doing so, the

judge recognized that, under Mass. R. Crim. P. 10, 378 Mass. 861

(1979) (rule 10), one of the factors that must be considered

when determining whether to grant a continuance is "[w]hether

the failure to grant a continuance . . . would be likely to make

a continuation of the proceeding impossible, or result in a

miscarriage of justice."   Mass. R. Crim. P. 10 (a) (2) (A).

According to the judge, it was this factor that "led [him] not

to dismiss the case outright on June 12, even as [he] denied

[the Commonwealth's motion to continue]."    The judge decided to

allow the Commonwealth another week "in an attempt to

accommodate the interests of all parties," and because he

"expected no prejudice to anyone, if, on June 19, [the parties]

proceeded to trial on that same date."   Thus, although the judge

did not characterize it as a continuance, that additional week

was, in effect, "a continuance granted . . . [based on] findings

that the ends of justice served . . . outweighed the best

interests of the public and the defendant in a speedy trial,"

and is excludable under rule 36 (b) (2) (F).   See Commonwealth


granting of the continuance outweigh the best interests of the
public and the defendant in a speedy trial."
                                                                   23


v. Davis, 91 Mass. App. Ct. 631, 637 n.11 (2017) (rule

36 [b] [2] [F] finding "need not be explicit, but may be implied

from the record").

     We conclude that, whether based on Garcia's unavailability

under rule 36 (b) (2) (B) or on a continuance under rule

36 (b) (2) (F), the period between June 12 and June 19 should be

excluded.   Although the Commonwealth did not specifically seek

to exclude time under these provisions, this was because of the

unusual posture that the cases were in:   the Commonwealth could

not be expected to argue for an exclusion based on a continuance

where the judge had specifically stated that he had granted no

such continuance.18   Moreover, the Commonwealth did in substance

make arguments in support of these exclusions when it filed its

motion to continue, contending that it was entitled to a

continuance because an essential witness was unavailable, and

that a continuance would serve the ends of justice because it

would not violate the defendants' right to a speedy trial.

Where the Commonwealth could not have reasonably been expected

     18 Indeed, at the hearing on June 12, 2017, the prosecutor
expressed confusion over the fact that, although the judge had
denied the motion to continue trial, the judge was nevertheless
giving the Commonwealth until June 19 to produce Garcia. When
the judge reiterated that he had denied the motion and was "not
continuing anything," the prosecutor attempted to clarify the
nature of the one-week period between June 12 and June 19,
stating: "I think it matters what the Court calls it for the
record, Judge." To this the judge responded, "We'll call it a
status conference, but you're going to impanel if you're ready."
                                                                      24


to argue for these exclusions, but nevertheless did establish

the grounds for applying them, we conclude that it cannot be

held to have waived those exclusions.

     Because the eight days between June 12 and June 19 are

excluded, the delays here -- two days in Golden's case and four

days in Graham's case -- have been justified.    Although this

alone requires us to vacate the dismissals under rule 36, we

also consider whether there are other excludable delays that may

affect the amount of time remaining before the cases must be

tried on remand or dismissed under rule 36.

     b.   Exclusions based on defendants' acquiescence.     The

second way that the Commonwealth can justify a delay is provided

not by any provision in rule 36 but by the common law.      Under

the common law, a defendant is not entitled to dismissal if he

or she acquiesced in, was responsible for, or benefited from the

delay.    See Barry, 390 Mass. at 295.   A defendant is held to

have acquiesced in a delay if he or she "agreed to a continuance

. . .    or has not entered an objection to delay."    Id. at 298.

Thus, in several cases we have excluded time under rule 36 based

on the defendant's failure to object to a delay.      See, e.g.,

Roman, 470 Mass. at 93; Denehy, 466 Mass. at 731-732; Lauria,

411 Mass. at 68-69; Farris, 390 Mass. at 305-306.      In doing so,

we have emphasized that rule 36 imposes obligations on all

parties, and that it is the obligation of criminal defendants to
                                                                    25


"press their case through the criminal justice system."    Lauria,

supra at 68, quoting Barry, supra at 297.    We have required

defendants to object to delays in order to preserve their rights

under rule 36 because we recognize that otherwise, "the public

interest . . . [may] be thwarted by those defense counsel who

decide that delay is the best defense tactic."    Barry, supra.

    The determination whether a defendant acquiesced in delay

is often retrospective, and therefore requires "a thorough

examination of the record."    Reporter's Notes to Mass. R. Crim.

P. 36 (b) (2), supra at 210.    We note that, in order to avoid

these difficult retrospective determinations, judges should

where possible make contemporaneous findings whether time should

be excluded under rule 36.    In particular, whenever a judge

grants a continuance -- whether it be a continuance of the trial

date or a continuance of some other scheduled event, such as a

pretrial conference or hearing -- the judge should also make a

finding whether the continuance serves the ends of justice, such

that the resulting delay should be excluded under rule

36 (b) (2) (F).   Even where the parties have not requested such

a finding, a judge should nevertheless make that finding sua

sponte, in order to make clear whether the delay resulting from

a continuance can be excluded under rule 36 (b) (2) (F).     Such a

finding is not burdensome for a judge to make or for a clerk to

record; the judge need only find, orally on the record or in
                                                                  26


writing, that the ends of justice served by granting the

continuance outweigh the best interests of the public and the

defendant in a speedy trial, see rule 36 (b) (2) (F), and the

clerk need only make a notation of "ends of justice" in

recording the continuance.

    But in cases where the parties have not requested such a

finding, and where the judge has failed to make one, it becomes

necessary to consider retrospectively whether that delay can be

excluded based on the defendant's acquiescence.    Here, the

Commonwealth contends that almost all of the time that has

elapsed in both cases should be excluded based on the

defendants' acquiescence, because every time a pretrial event

was scheduled, the defendants agreed to the scheduled date or

failed to object.   For example, at the pretrial conference on

July 14, 2016, the parties agreed to schedule a status

conference for September 29, 2016, which was noted in the docket

with the following entry:    "Case continued by agreement to

9/26/16 re: Status Conference."    The Commonwealth contends that,

because the defendants agreed to this date, they "agree[d] to

[a] continuance," and therefore the seventy-eight days between

the pretrial conference on July 14 and the status conference on

September 29 must be excluded.    Applying this logic to the

entire pretrial period, the Commonwealth contends that, every

time the defendants agreed to the scheduling of another event,
                                                                     27


the time leading up to that event must be excluded based on the

defendants' acquiescence.    By the Commonwealth's calculation,

this would mean that a total of 330 days should be excluded, in

both cases, out of the 367 days since Golden's arraignment and

the 369 days since Graham's arraignment.

    In response, the defendants argue (and the judge agreed)

that there is no time that can be excluded based on their

acquiescence, because the presumptive trial date of June 12,

2017, was never postponed.    They contend that any delay under

rule 36 must be measured in terms of impact on the presumptive

trial date.    Thus, where the presumptive trial date remained

unchanged since arraignment, they could not have been expected

to object to any delay, because there was no delay for them to

object to.    Under this interpretation, the clock would not be

tolled under rule 36 even if, for example, the defendant agrees

to the continuance of a scheduled event, such as a pretrial

hearing or conference.

    In short, each side interprets rule 36 as working harsh

results upon the other.     The Commonwealth interprets rule 36 to

mean that defendants must object every time an event is

scheduled, even if the objection is meritless, or else risk

having the time excluded based on their acquiescence.     The

defendants interpret rule 36 to mean that the speedy trial clock
                                                                  28


runs without pause against the Commonwealth unless the

presumptive trial date changes.

    We reject both of these interpretations.   The

Commonwealth's interpretation would encourage defense counsel in

a criminal case to be obstinate rather than flexible, combative

rather than cooperative.   It would invite defense counsel to

make baseless objections whenever an event is scheduled for the

first time.   It also mischaracterizes the clerk's language in

the docket entries -- stating that the case has been "continued

to" various dates -- as evidence of "continuances," when all

that it reflects is the next scheduled event in the case.

    Meanwhile, the defendants' interpretation fails to

recognize that a criminal case has various stages (e.g.,

pretrial conferences for the exchange of discovery and notice of

certain defenses, motions to suppress, the final pretrial

hearing to resolve motions in limine and other matters before

trial, and the trial itself), and that delay arising in any of

these stages is likely to result in delay in the subsequent

stages.   If there are no excludable delays under rule

36 (b) (2), and if the rule 36 clock cannot be tolled even where

the defendant acquiesces in delay during the various pretrial

stages, then in complex cases the presumptive trial date is

likely, as here, to be at or near the 365-day limit, leaving the

Commonwealth with little or no room for error to avoid dismissal
                                                                   29


under rule 36 and little time to prepare for trial after the

pretrial stages are completed.

    Our case law recognizes that preparing a case for trial is

a complex process, full of unexpected events and challenges, and

rejects any interpretation of rule 36 that would make parties

less likely to accommodate each other -- defendants because they

may risk losing their rights to a speedy trial and the

Commonwealth because it may risk running out of time.      Our

precedents make clear that time can be excluded based on a

defendant's acquiescence if the defendant agreed to or otherwise

failed to object to "a continuance or other delay" (emphasis

added).   Tanner, 417 Mass. at 3.   This means that, if an event

is scheduled for a certain date, and the defendant assents or

fails to object when that event is continued or rescheduled to a

later date, then that time can be excluded based on the

defendant's acquiescence.   For example, if a pretrial hearing

scheduled for March 1 is rescheduled by the parties' agreement

to March 8, then that eight-day delay may be excluded based on

the defendant's acquiescence.    Or, if the Commonwealth

successfully moves to continue the trial date from August 1 to

August 22, without objection from the defendant, then that

twenty-two-day continuance can also be excluded based on the

defendant's acquiescence.   See Commonwealth v. Williams, 475

Mass. 705, 715 (2016) (time excluded based on defendant's
                                                                   30


acquiescence where defendant and Commonwealth agreed to continue

pretrial hearing date, to extend deadline for filing pretrial

motions, and to continue trial date); Commonwealth v. Taylor,

469 Mass. 516, 525 (2014) (time excluded based on defendant's

acquiescence where defendant agreed to reschedule presumptive

trial date).19   But where a defendant agrees for the first time

to schedule a previously unscheduled event, there is no

"continuance" or "delay" that can be excluded under rule 36.    In

these cases, for example, when the defendants agreed to schedule

a status conference for September 29, 2016, they were not

agreeing to a continuance or delay, because this was the first

time a date had been set for that conference.   Just because the

docket states that "[the] case [was] continued" does not mean

that there was a continuance to which the defendants were

required to object, unless an event was in fact continued from

an earlier date to a later date, or was not held as scheduled.

Contrary to the Commonwealth's suggestion, nothing in rule 36 or

our case law requires defendants to object every time another

event is scheduled.   See Spaulding, 411 Mass. at 506 ("[W]e have


     19Time can also be excluded under rule 36 based on a
defendant's acquiescence if the defendant allows an already
scheduled event to pass without objection. See, e.g.,
Commonwealth v. Spaulding, 411 Mass. 503, 507 (1992) (time
excluded under rule 36 where defendant allowed scheduled trial
date to pass without objection); Commonwealth v. Farris, 390
Mass. 300, 306 (1983) (same).
                                                                  31


never held that rule 36 time does not begin to run until the

defendant first makes an objection").

    This does not mean, however, that defendants are absolved

of their duty to "press their case through the criminal justice

system." Barry, 390 Mass. at 297.   There are many events that

may constitute a "delay," potentially taking up time that may

otherwise be used to prepare for trial, even if the presumptive

trial date does not change.   Although the more common of these

events, such as the resolution of pretrial motions, are

enumerated under rule 36 (b) (2), there are also various

unanticipated events that the parties may agree to work around.

For example, a pretrial hearing may need to be rescheduled if

the Commonwealth's attorney cannot attend because of an

unexpected family emergency, or a filing deadline may need to be

extended if defense counsel has an important deadline in another

case falling on the same date.   Such delays may not have any

effect on the presumptive trial date, but if the defendant does

not object to them, they should not be counted against the

Commonwealth.   Here, the judge erroneously focused only on

delays that "affect[], or potentially affect[]," the trial date,

even though we have never held that a continuance or delay must

have an effect on the trial date, presumptive or otherwise, in

order for it to be excluded under rule 36.   Indeed, in several

cases we have excluded time where the defendant acquiesced in a
                                                                  32


delay to an event other than the trial itself.   See, e.g.,

Williams, 475 Mass. at 715 (continuance in pretrial hearing date

and extension of filing deadline); Roman, 470 Mass. at 93

(continuance in pretrial hearing date); Commonwealth v. Rodgers,

448 Mass. 538, 541 (2007) (extension of filing deadline).20

     Having examined the record to determine whether any delay

here can be justified based on the defendants' acquiescence, we

conclude that much of the time that the Commonwealth claims is

excluded must instead be included.   The Commonwealth contends

that the defendants acquiesced in delay on eight occasions when

they agreed to schedule a previously unscheduled pretrial

event,21 and on two other occasions when they failed to object to




     20A defendant may also be found to have acquiesced in or
benefited from a delay where a judge proposes a date for the
next event and the defendant asks for that date to be postponed
to a later date. Where this happens, a judge might find that
the defendant has acquiesced in the delay between the proposed
date and the later date. But where this happens, it is
important that the judge make a contemporaneous finding of
acquiescence or benefit because, without such a contemporaneous
finding, the docket may simply reflect the scheduled date of
this next event.

     21The Commonwealth claims that the defendants acquiesced in
delay when they agreed to schedule the following pretrial
events: (1) a status conference for September 29, 2016; (2) a
motion hearing for January 11, 2017; (3) a status conference for
February 16, 2017; (4) a motion hearing for March 23, 2017; (5)
a status conference for April 25, 2017; (6) a motion hearing for
May 2, 2017; (7) a motion hearing for June 6, 2017; and (8) a
hearing on June 9, 2017.
                                                                     33


events that were already scheduled at arraignment.22    On none of

these occasions was there any "continuance or . . . delay" to

which the defendants could have objected.     Tanner, 417 Mass. at

3.   See Barry, 390 Mass. at 296 n.13 ("counsel need not object

where a procedure and timetable is established by the rules").23

     However, the record does reveal two occasions on which the

defendants may have in fact agreed to a continuance or delay.

In Graham's case, a motion hearing that was scheduled for

January 11, 2017, appears to have been continued to February 16,

2017, by the parties' agreement.   Meanwhile, in both cases, a

motion hearing that was scheduled for May 2, 2017, appears to

have been continued to May 11, 2017, although the docket does

not indicate whether this was by agreement.    If the defendants

agreed to these continuances or failed to object to them, as the


     22The Commonwealth claims that the defendants acquiesced in
delay when they failed to object to events that had already been
presumptively scheduled at arraignment: (1) the first pretrial
hearing on December 13, 2016; and (2) the final pretrial hearing
on June 1, 2017.

     23In its opposition to the defendants' motions to dismiss,
the Commonwealth also argued that the seventeen days between
April 25, 2017, when Graham filed his second rule 14 motion, and
May 11, 2017, when the judge ruled on that motion, should be
excluded because Graham benefited from this delay. But where
Graham filed this motion because the Commonwealth had failed to
provide discovery that was mandatory under rule 14, see note 15,
supra, he cannot be held to have benefited from such delay. Cf.
Taylor, 469 Mass. at 527 ("[I]t makes little sense [to exclude
time under rule 36 (b) (2)] when a defendant moves to compel
production of discovery he indisputably is owed").
                                                                   34


Commonwealth alleges, then these time periods -- thirty-seven

days for the first alleged continuance and ten days for the

second -- could be excluded based on the defendants'

acquiescence, placing the Commonwealth within the time limits of

rule 36.   The docket does not provide us with sufficient

information to determine whether there was acquiescence in delay

on either of these occasions.    Specifically, in Graham's case,

it is unclear whether the motion hearing that was scheduled for

January 11 was in fact continued, or whether it was simply

canceled, with the next event -- the status conference --

scheduled for February 16.24    And in both cases, it is unclear

whether the motion hearing scheduled for May 2 was continued to




     24It is not clear why there was a "motion hearing"
scheduled for January 11, 2017, in Graham's case, because at
that time Graham had no pending motions. The hearing was
described in the docket as a "Hearing Re: Motion to Dismiss,"
which was likely a reference to a hearing in Golden's case,
scheduled for the same date, to hear Golden's motion to dismiss.
Golden's motion hearing was held as scheduled.

     The docket entry for January 11, 2017, in Graham's case
states: "Motion Hearing scheduled for 01/11/2017 . . . has been
resulted as follows: . . . Rescheduled. Reason: Defense
Attorney failed to appear, Deft not in Court (in Lockup) Cont
[t]o 2/16/17 by agree, Hr re: Status conf." This could suggest
that, because there was no need for a motion hearing in Graham's
case, the parties agreed not to hold one, and agreed to schedule
their next event (i.e., a status conference) for February 16,
2017 -- in which case the time between January 11 and February
16 would not be considered a continuance.
                                                                   35


May 11 by agreement or whether the defendants objected.25    The

judge made no findings on these issues, because he assumed,

incorrectly, that delay resulting from a continuance could not

be excluded unless it affected the presumptive trial date.    On

remand, the judge may determine based on an expanded record

whether the defendants acquiesced in delay during the following

time periods:   (1) between January 11, 2017, and February 16,

2017, in Graham's case; and (2) between May 2, 2017, and May 11,

2017, in both cases.   If so, those time periods must be

excluded.26

     2.   Failure to prosecute.   Having found that the dismissals

under rule 36 must be vacated, we turn to the judge's dismissal

of the indictments for failure to prosecute.

     Even where dismissal is not required under rule 36, a judge

nevertheless retains the inherent authority to dismiss an

indictment for failure to prosecute.   See Commonwealth v.

Jenkins, 431 Mass. 501, 504 (2000).    Where such dismissal is

without prejudice, "the judge's action should be upheld in the

     25The docket entry for May 2, 2017, simply states:
"[C]ontinued to 5/11/2017 . . . for motion hearing." The docket
elsewhere states that the hearing scheduled for May 2, 2017, was
"[r]escheduled."

     26On appeal, the Commonwealth also claims that the judge's
interpretation of rule 36 violates the separation of powers.
Because we conclude that the judge's interpretation is
incorrect, and because we vacate the dismissals, we need not
address this argument.
                                                                   36


absence of an abuse of discretion."   Commonwealth v. Connelly,

418 Mass. 37, 38 (1994).   But where such dismissal is with

prejudice, "there must be a showing of egregious misconduct or

at least a serious threat of prejudice."    Id.

    Here, the judge concluded that there was a violation of

rule 36, leaving him with no discretion but to dismiss with

prejudice.   But the judge also concluded that, "[i]f the [r]ule

36 period has not expired, such that the Court [does have]

discretion [to dismiss], the Court . . . grants the [m]otions

[to dismiss] on the ground[s] of failure to prosecute these

cases."   The judge further clarified that, "[b]ut for the [r]ule

36 violation, this dismissal would have been without prejudice."

Thus, because we have determined that there was no rule 36

violation in these cases, the dismissal based on failure to

prosecute must be deemed without prejudice.    We therefore review

it for abuse of discretion.

    Generally, "where a prosecutor is unprepared to present her

case due to the unexpected absence of a witness, a judge has

discretion to dismiss the case without prejudice."    Commonwealth

v. Lucero, 450 Mass. 1032, 1033 (2008).    However, that

discretion is not unlimited.   "[A] judge's discretionary

decision constitutes an abuse of discretion where we conclude

the judge made 'a clear error of judgment in weighing' the

factors relevant to the decision, such that the decision falls
                                                                  37


outside the range of reasonable alternatives" (citation

omitted).   L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

      Here, the judge concluded that the cases should be

dismissed for failure to prosecute because the Commonwealth was

not ready for trial on the first scheduled trial date, June 12,

2017, and was still not ready for trial one week later, on June

19.   In reaching this conclusion, the judge weighed the various

factors that a court must consider under rule 10 when

determining whether to grant a motion to continue.   This was

appropriate, given that, where a judge is asked to rule on both

a motion to continue and a motion to dismiss without prejudice,

those decisions are in essence two sides of the same coin:      the

same factors that would weigh in favor of allowing a motion to

continue would weigh against allowing a motion to dismiss, and

vice versa.   The factors to be considered under rule 10 include

"[w]hether the failure to grant a continuance . . . would be

likely to . . . result in a miscarriage of justice," and

"whether there has been a failure . . . to use due diligence to

obtain available witnesses."   Mass. R. Crim. P. 10 (a) (2).

      We conclude that, in balancing these factors, the judge

exceeded the limits of his discretion.   In concluding that

dismissal would not result in a miscarriage of justice, the

judge gave inadequate weight to the public interest in bringing

to trial defendants who are charged with murder and to the fact
                                                                  38


that barely one year had passed since the defendants'

arraignments.   Although dismissals without prejudice would not

preclude the Commonwealth from seeking new indictments and

prosecuting the cases anew, see Commonwealth v. Anderson, 402

Mass. 576, 579 (1988), it is nonetheless a severe sanction that

must be exercised with great caution in a murder case that has

moved with unusual speed to trial.

    The judge also gave great weight to his finding that the

Commonwealth had failed to exercise due diligence in securing

Garcia's attendance.   The judge made this finding without the

benefit of an evidentiary hearing, concluding instead that

dismissal was warranted even if he accepted as true the facts

proffered by the Commonwealth.    Therefore, in reviewing the

dismissal for failure to prosecute, we also must accept the

Commonwealth's proffer as true.

    According to that proffer, the police had been in regular

contact with Garcia since 2015, long after Garcia would have

realized that the Commonwealth had failed to assist him with his

own narcotics case, but the police did not learn until June 8,

2017 -- when Garcia stated in a telephone call that he did not

"want to be bothered any longer" regarding these cases -- that

he was unwilling to testify at trial.   To be sure, where there

were warning signs that Garcia might no longer be willing to

cooperate, the police should have taken steps to assure his
                                                                  39


appearance at trial before late May, since it was clear by May

11, when the Commonwealth's first motion to continue was denied,

that the trial would proceed as scheduled on June 12.    Moreover,

when the police were unable to reach Garcia by telephone, they

should not have waited until June 7 to send an officer to

Florida to locate him.   And although it is reasonable for the

Commonwealth not to have sought interstate process when it still

believed that Garcia was willing to cooperate, if the

Commonwealth had moved sooner, it would have realized earlier

that it needed to take steps to compel his attendance.   Having

said that, the Commonwealth did act promptly once it learned

that Garcia was unwilling to testify.   And although one can

fault the effort made by the investigator for the Florida State

Attorney's office in attempting to serve Garcia with interstate

process, the Commonwealth is not responsible for the quality of

that effort.   In short, even if the judge was correct that the

Commonwealth had not exercised due diligence in procuring

Garcia's attendance at trial, its lack of diligence does not

rise to the level that we have, in other cases, recognized as

justifying dismissal for failure to prosecute, especially where

the indictments are for murder and where only one additional

week had been given to locate and produce Garcia for trial.

See, e.g., Anderson, 402 Mass. at 579 (dismissal within judge's

discretion where prosecutor was repeatedly tardy and not ready
                                                                   40


to proceed on first day of trial); Commonwealth v. Joseph, 27

Mass. App. Ct. 516, 518-519 (1989) (dismissal within judge's

discretion where prosecutor was not ready for trial because of

witnesses' absence, apparently made no "inquiry concerning

[their] absence," and took "cavalier attitude" toward case).

See also Commonwealth v. Clark, 454 Mass. 1001, 1002 (2009) ("a

judge has the authority to dismiss an indictment . . . where the

Commonwealth has repeatedly failed to produce its witnesses and

effectuate a prosecution" [emphasis added]).

    In such circumstances, we expect a judge presiding over a

murder case to give the Commonwealth more time to locate a

recalcitrant essential witness, and to dismiss for failure to

prosecute only where it is apparent that continued diligent

efforts would prove futile.    Where the interests of justice so

require, and where the defendant's appearance at trial can be

assured, a judge may diminish the prejudice to the defendant

resulting from such a continuance by releasing the defendant on

bail with appropriate conditions, as the judge did here during

the pendency of this appeal.

    Finally, although the judge identified the Commonwealth's

failure to prosecute as a separate and alternative ground for

dismissal, we note that he may have relied to some extent on his

erroneous conclusion that dismissal was required under rule 36.

He wrote, for example, that, "[w]ere it not for the expiration
                                                                  41


of the [r]ule 36 period, the Court might have waited slightly

longer before dismissing the case, if there were even a glimmer

of hope that the Commonwealth might actually secure . . .

Garcia's testimony."   Because he failed to fully consider

certain factors when exercising his discretion, and because his

reasoning appeared to rest in part on his view that the time

limits under rule 36 had run, we conclude that the judge abused

his discretion in dismissing the indictments for failure to

prosecute.

    Conclusion.   For the foregoing reasons, the order allowing

the defendants' motions to dismiss is vacated.    The cases are

remanded to the Superior Court for further proceedings

consistent with this opinion.

                                    So ordered.
