COMMONWEALTH v. BERMUDEZ (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The Commonwealth appeals from a District Court judge's allowance of the defendant's motion to suppress evidence. The judge granted the motion on the ground that the Commonwealth was not prepared to go forward at the suppression hearing. The prosecutor's request for a short continuance to secure the presence of a critical witness was denied. The Commonwealth contends that the judge's refusal to grant a continuance and the allowance of the motion to suppress, without a hearing, constituted an abuse of discretion. For the reasons that follow, we reverse the order allowing the motion to suppress.

Background. On May 30, 2017, the defendant was charged by complaint in the Springfield District Court with various offenses including illegal possession of a firearm, in violation of G. L. c. 269, § 10 (a).² The firearm was found by a Springfield police officer during a warrantless search of a motor vehicle driven by the defendant. Following the defendant's arraignment, a pretrial hearing was scheduled, and then continued three times for unknown reasons. Ultimately, a pretrial hearing was held on December 14, 2017. At the hearing, the defendant indicated that he intended to file a motion to suppress the firearm and other items seized from the car during the search. The motion was filed and an evidentiary hearing was scheduled for March 1, 2018. The hearing did not go forward that day because a necessary witness, the officer who conducted the search, did not appear. The prosecutor informed the judge that he and the Springfield police department's liaison officers had made repeated attempts to contact the officer without success and requested a continuance. Defense counsel objected and, after observing that there was “no good reason” for the officer's failure to appear, he asked the judge to allow the motion to suppress because the Commonwealth could not meet its burden without the officer's testimony.

Thereafter, the prosecutor and the judge engaged in a discussion regarding the manner in which the officer had been notified of the hearing. The prosecutor could not provide an answer to the judge's questions regarding the officer's absence. The prosecutor believed it was possible the officer had never received notice of the hearing because he had been on vacation and away for training. He then informed the judge that discovery was complete and that only a short continuance was necessary.

The judge was understandably frustrated. He commented at length about the Commonwealth's system for summonsing officers to testify, describing it as inadequate and unfair. The judge stated: “you have this system in place that leads to no accountability and in fairness to both sides when police officers just don't show up I don't know what I'm supposed to believe, either somebody's not doing their job or there's even worse things going on.”

The judge twice observed that he had been dealing with this poor system for over ten years and that “something needs to be done to fix it ․” The prosecutor noted that the same officer had appeared in other cases without a problem and reminded the judge that this was the first hearing date for the motion. However, the judge continued to express his annoyance, stating that police officers should not be treated any differently than ordinary citizens. Eventually, the judge stated that he was unwilling to delay the case further unless the Commonwealth could produce evidence that the officer was “in the hospital or something.” The judge allowed the motion to suppress in a marginal endorsement stating: “This motion allowed. Commonwealth unable to go forward and can offer no explanation as to why police officer witness is not present and cannot confirm that he ever received notice to be here, despite fact that date was set in December, 2017.”

Discussion. a. Motion for a continuance. The Commonwealth first claims that the judge abused his discretion in denying its oral motion to continue the hearing. We agree. “Although a judge enjoys great latitude when he grants or denies a request for a continuance, his discretion to do so is not unfettered.” Commonwealth v. Borders, 73 Mass. App. Ct. 911, 912 (2009). Continuances in the trial court are governed by Mass. R. Crim. P. 10, as appearing in 378 Mass. 861 (1979). The rule requires a judge to weigh several factors in determining whether a continuance should be granted. These factors include, among others, possible inconvenience and increased costs which may be incurred by the opposing party if the motion is granted, whether a continuance will result in a miscarriage of justice, and whether “there has been a failure by a party to use due diligence to obtain available witnesses.” See Mass. R. Crim. P. 10 (a) (2) (C).

Here, the judge failed to adequately consider these factors. The Commonwealth's request for a continuance was made at the first scheduled hearing date. There is nothing in the record to support a conclusion that setting a new hearing date would prejudice the defendant or that the prosecutor failed to use due diligence. In our view, the circumstances here are similar to those presented in Borders, 73 Mass. App. Ct. at 912, and Commonwealth v. Clegg, 61 Mass. App. Ct. 197, 201 (2004), where we concluded that the judge abused his discretion by not granting a continuance.

b. Motion to suppress. We also agree with the Commonwealth that the judge's decision to allow the defendant's motion to suppress was not based on anything other than his frustration with the Commonwealth's mechanism for securing the appearance of police witnesses. Because the decision was not based on any facts pertaining to the defendant's claim that the warrantless search of the vehicle he was operating had been unjustified, we are constrained to conclude that the judge erred in not holding an evidentiary hearing and addressing the merits of the defendant's claims. It appears that the judge intended to sanction the Commonwealth and did so improperly by allowing the motion to suppress. Contrast Commonwealth v. Burston, 77 Mass. App. Ct. 411, 418 (2010) (no abuse of discretion in allowing, without hearing, defendant's motion to suppress, after denying Commonwealth's second motion for continuance, where judge concluded that prosecutor had failed to provide discovery and did not exercise due diligence to secure witnesses for suppression hearing). Accordingly, the order allowing the motion to suppress is reversed.

So ordered.

Reversed.

FOOTNOTES

2.   The defendant was also charged with unlicensed operation of a motor vehicle, in violation of G. L. c. 90, § 10, unlawful possession of fireworks, in violation of G. L. c. 148, § 39, possession of a firearm without an FID card, in violation of G. L. c. 269, § 10 (h), receiving stolen property of a value greater than $ 250, in violation of G. L. c. 266, § 60, and two civil motor vehicle infractions.