Opinion
15-P-783
04-01-2016
COMMONWEALTH v. KENNETH LEE REEVES.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is the Commonwealth's interlocutory appeal from the allowance of the defendant's motion to suppress. That motion was allowed after the Commonwealth's second motion for a continuance was denied. We affirm.
The defendant was charged with assault by means of a dangerous weapon, G. L. c. 265, § 15B(b), stemming from an incident in which he threatened two of his neighbors with a riding crop. After receiving the defendant's consent, the responding officers searched the defendant's vehicle, where they found the crop. The defendant moved to suppress. A hearing on the motion was scheduled for November 5, 2014, but was continued on the Commonwealth's motion until December 9, 2014, because the percipient officer was unavailable. On December 9, the Commonwealth was again not ready to proceed because of the officer's absence. There was no explanation for his absence or clue as to his whereabouts, the prosecutor stating only that "[w]e reached out to him (inaudible) the police room, but have not heard anything in terms of his whereabouts at this time." After the motion judge received assurance from the prosecutor that allowing the defendant's motion would not preclude the Commonwealth from going forward with its case, the judge declined to grant the Commonwealth a second continuance. A necessary result of this ruling was the allowance of the defendant's motion to suppress.
"[A] continuance shall be granted only when based upon cause and only when necessary to insure that the interests of justice are served." Mass.R.Crim.P. 10(a)(1), 378 Mass. 861 (1979). "Generally, 'the decision whether to grant a motion to continue lies within the sound discretion of the trial judge . . . [and a] denial of a continuance will not constitute error absent an abuse of that discretion.'" Commonwealth v. Super, 431 Mass. 492, 496 (2000), quoting from Commonwealth v. Painten, 429 Mass. 536, 543 (1999). "The judge's discretion is not unfettered, however, but bounded by important considerations. 'In considering a request for a continuance, a trial 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.'" Commonwealth v. Clegg, 61 Mass. App. Ct. 197, 200 (2004), quoting from Super, supra at 496-497. The judge must also consider "whether the failure to grant a continuance . . . would be likely to make a continuation of the proceeding impossible, or result in a miscarriage of justice . . . [and] whether there has been a failure by a party to use due diligence to obtain available witnesses." Mass.R.Crim.P. 10(a)(2)(A) & (C), 378 Mass. 861 (1979).
Here, the following factors lead us to conclude that the judge did not abuse her discretion in denying the Commonwealth's second motion for a continuance. First, the Commonwealth's efforts to obtain the officer's presence were far from extensive and apparently did not include summonsing him to appear. Second, the Commonwealth had ample notice of the hearing date. Third, the defendant was (apparently) not made aware of the Commonwealth's need for a second continuance before the motion hearing. See Commonwealth v. Joseph, 27 Mass. App. Ct. 516, 518-519 (1989). Contrast Commonwealth v. Borders, 73 Mass. App. Ct. 911, 912 (2009). Fourth, and most importantly, the judge was satisfied that the Commonwealth's case would not be doomed by allowing the defendant's motion to suppress. See Joseph, supra at 519 (affirming denial of continuance and consequent dismissal of case without prejudice, in part because "the Commonwealth has made no claim or showing that it will suffer undue prejudice if required to seek new complaints and recommence the prosecution of the defendant"). Contrast e.g., Commonwealth v. Clegg, 61 Mass. App. Ct. at 201 ("[D]enying the Commonwealth's motion to continue and requiring the Commonwealth to proceed without evidence assured an outcome adverse to the Commonwealth and was tantamount to dismissal with prejudice"); Commonwealth v. Borders, supra at 912.
In these circumstances, we discern no abuse of discretion in the judge's denial of the Commonwealth's motion for a continuance nor error in allowing the defendant's motion to suppress.
Order allowing motion to suppress affirmed.
By the Court (Wolohojian, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 1, 2016.