Opinion
16-P-1146
05-22-2017
COMMONWEALTH v. Marcia B. GOOD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth filed this interlocutory appeal from a judge's order excluding and suppressing for use at any trial, the testimony of a Massachusetts State police trooper regarding the defendant's breathalyzer test results. For the reasons discussed herein, we reverse the order, and remand the matter to the District Court for further proceedings.
Background. On September 22, 2015, in the Plymouth District Court, the defendant's trial on charges of operating under the influence of intoxicating liquor (second offense), operating an uninsured motor vehicle, operating a vehicle with a suspended registration, and multiple civil infractions was scheduled. There was at least one other matter scheduled for trial that morning, which was sent out for empanelment.
The Commonwealth "expect[ed]" to be ready for trial. The trooper who arrested the defendant was present and the Commonwealth was awaiting the arrival of a second witness—the trooper who had administered the breathalyzer. That trooper was answering a summons to the Wareham District Court.
In light of the fact that a trial on the defendant's matter was unlikely, as another matter had preceded it to trial, at second call, counsel for the defendant was prepared to agree to a continuance and accept a new trial date, but he indicated to the judge that the defendant would likely have offered a change of plea had the other trooper been present. At that point, the judge threatened to dismiss the case without prejudice. The prosecutor protested. She told the judge that she was ready to proceed to trial. The judge ordered the trooper to arrive by 10:30 a.m.; otherwise her testimony would be excluded from any future trial. At a third call, the Commonwealth reported that the trooper, who was coming from the Wareham District Court, was on her way to court, but the judge excluded the evidence nevertheless.
It is not clear from the record whether the trial could have proceeded on September 22, 2015. Ultimately, the case was continued to January 7, 2016.
Discussion. In situations where a witness is unavailable, the decision to grant or deny a request for a continuance is committed to the sound discretion of the trial judge. See Commonwealth v. Super, 431 Mass. 492, 496-497 (2000). In making this determination, the judge should "balance the movant's need for additional time against the possible inconvenience, increased costs, and prejudice which may be incurred by the opposing party if the motion is granted." Ibid., quoting from Commonwealth v. Gilchrest, 364 Mass. 272, 276 (1973). "[W]here a prosecutor is unprepared to present her case due to the unexpected absence of a witness, a judge has discretion to dismiss the case." Commonwealth v. Lucero, 450 Mass. 1032, 1033 (2008). Here, however, the Commonwealth did not seek a continuance. The Commonwealth answered ready for trial with the one witness that was present and the other that was on her way.
The record does not reflect that the witness's failure to appear before 10:30 a.m. was the result of bad faith on the part of the Commonwealth. Cf. Commonwealth v. Burston, 77 Mass. App. Ct. 411, 417 (2010) (no abuse of discretion in granting motion to suppress because the prosecutor failed to summons a necessary witness to the hearing and offered a pretextual reason for seeking a continuance). The judge acknowledged as much by saying, "I am sure the District Attorney's office are doing everything they can, possibly can, to get the keeper of the records here, to get the witnesses lined up. I am sure of that. But like the other day, we had the [breathalyzer test] representative scheduled to appear in three separate courts." Nor is there any indication that the witness's failure to appear by 10:30 a.m. resulted in undue delay or prejudice to the defendant. Due to court congestion, it is not likely that the case could have proceeded to trial that day.
This is not a case involving a discovery violation that might warrant the exclusion of evidence according to Mass.R.Crim.P. 14(c), as appearing in 442 Mass. 1518 (2004), due to prosecutorial misconduct.
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Moreover, as a general rule, "witnesses, police officers, victims, and other participants in a trial should be accommodated to the extent possible without disrupting the orderly processing of criminal cases." Super, supra at 497. Even if the defendant's trial could proceed on that day, there is no indication that the judge could not accommodate this witness's competing court appearance schedule. This witness was on her way from a neighboring court. Given that there was still jury selection, the judge's preliminary instructions to the jury, the opening statements of counsel, and the direct and cross-examination of the Commonwealth's first witness, it is highly unlikely that the trooper's testimony was going to be reached before her arrival to the Plymouth District Court. We are aware of no case, and the defendant has cited none to us, in which in similar circumstances it was within a judge's discretion to exclude evidence in this manner. In our view, the judge exceeded his authority in excluding the trooper's testimony. While we understand the challenges of managing a District Court trial list, the judge has a responsibility to the public as well as to the defendant. We note, in this regard, that this defendant was charged with operating a motor vehicle while under the influence of intoxicating liquor, second offense, and that she had asked neither to have the case dismissed nor to have the breathalyzer evidence excluded. The judge's order was sua sponte.
The order allowing the defendant's motion to suppress testimony regarding the breathalyzer results is vacated. The matter is remanded to the District Court for further proceedings consistent with this memorandum and order.
So ordered.
Vacated and remanded.