Opinion
18-P-875
12-06-2019
COMMONWEALTH v. Reggie D. CUMMINGS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of assault and battery. He subsequently filed a motion for a new trial, which was denied without a hearing. He appeals from both the judgment and the order denying his motion. On appeal, he claims that the judge abused his discretion in denying the defendant's request for a continuance on the morning of trial. We affirm.
"Whether a motion for continuance should be granted lies within the sound discretion of the judge, whose action will not be disturbed unless there is patent abuse of that discretion, which is to be determined in the circumstances of each case." Commonwealth v. Bettencourt, 361 Mass. 515, 517-518 (1972). Although a judge "may not exercise his [or her] discretion in such a way that denial of a continuance deprives a defendant of the right to effective assistance of counsel and to due process of law," Commonwealth v. Pena, 462 Mass. 183, 190 (2012), we give "due weight" to considerations such as "judicial economy and the avoidance of delays that do not ‘measurably contribute to the resolution’ " of the case. Id., quoting Commonwealth v. Cruz, 456 Mass. 741, 748 (2010).
Here, defense counsel was prepared to try the case and answered ready for trial. Before trial, defense counsel had described to the defendant the contents of the videotape (video) that had captured the crime, but the defendant had not watched the video himself. The judge suggested that the defendant watch the video; after watching the video the defendant indicated that he wanted to call the victim as witness. In order to do so, the defendant requested a continuance, the judge denied that request, and the victim did not testify.
The surveillance video was a crucial part of the Commonwealth's case and captured the defendant's and the victim's fight.
The defendant may have actually benefited from the absence of the victim's testimony. Defense counsel put forth two theories to undercut the Commonwealth's case: self-defense and consent. Had the victim testified that the fight was consensual, it would have eliminated any self-defense theory.
The defendant claimed that he was not aware of the identity of the victim until the morning of trial, and that he thought he was in court for a pretrial hearing instead of for the trial itself. Defense counsel informed the judge that the defendant believed there had not been sufficient time to investigate the case, but counsel did not share that belief and reported that he was ready to try the case. Relative to the victim's identity, the defendant had been charged two years earlier by a complaint that contained the victim's name. Denying the defendant's motion for a continuance was not an abuse of discretion. See Bettencourt, 361 Mass. at 518.
The defendant already had a pretrial hearing less than a month before trial.
Moreover, the underlying crime involved an altercation between the defendant and the victim, who was also an inmate and the defendant's "friend." As a result of the fight, the defendant was placed on disciplinary status. Given this, the judge had ample basis not to credit the defendant's claim that he did not know the identity of the victim.
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Judgment affirmed.
Order denying motion for new trial affirmed.