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Appeals Court of Massachusetts.



Decided: March 10, 2021

By the Court (Rubin, Blake & Lemire, JJ.1)


The Commonwealth appeals from a District Court judge's allowance of the defendant's motion to suppress evidence. We affirm.

Background. On March 8, 2017, a complaint issued against the defendant for a drug offense. The defendant was scheduled to be arraigned on March 29, 2017, but he failed to appear; a warrant issued for his arrest. On December 27, 2017, the warrant was removed and the defendant was arraigned. On November 2, 2018, the defendant filed a motion to suppress evidence, supported by an affidavit (motion).2 The motion hearing, scheduled for November 9, 2018, was continued. On January 16, 2019, the Commonwealth's motion to continue was denied. On the next scheduled hearing date of January 25, 2019, the motion hearing was rescheduled. On March 12, 2019, again the motion was not heard, and was rescheduled to May 9, 2019. On May 9, 2019, the Commonwealth requested a new date; the defendant filed a motion to dismiss, which was denied. The motion was rescheduled for July 10, 2019.

On July 10, 2019, the Commonwealth answered “not ready” because the arresting State trooper, an indispensable witness, was unavailable. The defense attorney moved to dismiss, arguing that the hearing “ha[d] been scheduled numerous times,” that “objection had been made under rule 36 grounds previously,” see Mass. R. Crim. P. 36, 378 Mass. 909 (1979), and at an earlier date the judge had denied a continuance request and “indicated no further continuance.” Defense counsel argued that the date was specifically chosen to accommodate the trooper's limited availability, and that the trooper was supposed to be present in that court for an unrelated hearing that day.

In a margin endorsement, the judge allowed the motion to suppress without a hearing because the “Commonwealth [was] unable to present evidence supporting the warrantless search [and] seizure of the defendant.” At the hearing, the judge noted that the trooper had “failed to appear on at least five separate” hearing dates, the “case [had] been marked no further continuances twice,” and the Commonwealth had answered “[n]ot [r]eady” on the last three hearing dates. The judge further noted that the trooper “has appeared to testify in other matters but not in this matter. The Commonwealth is selectively deciding which cases to proceed with and, because of that, I cannot give them a continuance for good cause and I am allowing the motion to suppress pursuant to [Commonwealth v. Burston, 77 Mass. App. Ct. 411 (2010)].” The Commonwealth asked the judge to dismiss the case without prejudice rather than allowing the motion to suppress. The judge denied that request. The Commonwealth petitioned the Supreme Judicial Court for leave to file an interlocutory appeal. The petition was allowed on August 27, 2019, and the appeal was transferred to this court.

Discussion. “Generally, ‘the decision whether to grant a motion to continue lies within the sound discretion of the ․ judge ․ [and a] denial of a continuance will not constitute error absent an abuse of that discretion.’ ” Commonwealth v. Clegg, 61 Mass. App. Ct. 197, 200 (2004), quoting Commonwealth v. Super, 431 Mass. 492, 496 (2000). “The judge's discretion is not unfettered, however, but bounded by important considerations.” Clegg, supra. “In considering a request for a continuance, 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.” Id. quoting Super, supra at 496-497. The judge may also consider whether the party seeking the continuance exercised due diligence to obtain available witnesses. See Burston, 77 Mass. App. Ct. at 416-417, citing Mass. R. Crim. P. 10 (a) (2) (C), 378 Mass. 861 (1979).

We have held that it was an abuse of discretion for a judge to dismiss a case or allow a motion to suppress where the Commonwealth was unprepared for a single event. In Commonwealth v. Borders, 73 Mass. App. Ct. 911 (2009), the Commonwealth requested a continuance on the first day of trial because two necessary witnesses were unavailable; the request was denied and the judge dismissed the case with prejudice. Id. at 911-912. There, we held that the judge abused his discretion because there was no egregious misconduct by the Commonwealth or prejudice to the defendant. Id. at 912-913. Similarly, in Clegg, 61 Mass. App. Ct. at 201, we held that the judge abused his discretion in allowing the motion to suppress where the judge made no inquiry into the reasons for the witness's absence and as such had no basis to conclude the nonattendance was not based on good cause. And, the defendant in Clegg failed to file a supporting affidavit as required by Mass. R. Crim. P. 13 (a) (2), as appearing in 442 Mass. 1516 (2004). Id. at 203-204. However by contrast, in Burston, we affirmed the allowance of the defendant's motion to suppress where the previous hearing was continued at the Commonwealth's request, and on the agreed upon rescheduled date, the Commonwealth once again requested a continuance, and had not summonsed the police witnesses to appear at the hearing. Burston, 77 Mass. App. Ct. at 417-418.

The present case is more analogous to Burston than Clegg or Borders. Here, the motion hearing was rescheduled five times over the course of nine months. The Commonwealth's necessary witness did not appear for any of these hearings. Moreover, it appears that the hearing date of July 10, 2019, was selected to accommodate the trooper's limited availability. On these facts, the judge could reasonably conclude that the Commonwealth failed to exercise due diligence to obtain available witnesses. Compare Burston, 77 Mass. App. Ct. at 413-418. And, while “[t]he judge's disposition may have been severe[,] ․ it was not [an abuse] of discretion.” Id. at 418.

Order allowing motion to suppress affirmed.


2.   He also filed a motion to dismiss for lack of probable cause.

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