Com. v. Brant

• Citation: 190 N.E.2d 900,346 Mass. 202
• Parties: COMMONWEALTH v. Conald R. BRANT.
• Decision Date: 04 June 1963
• Court: United States State Supreme Judicial Court of Massachusetts

Page 900

190 N.E.2d 900

346 Mass. 202

COMMONWEALTH v. Conald R. BRANT.

Supreme Judicial Court of Massachusetts, Hampden.

Argued May 6, 1963.

Decided June 4, 1963.

Matthew J. Ryan, Jr., Dist. Atty., for Commonwealth.

Thomas J. O'Connor (of O'Connor, Martinelli & Smith), Springfield, for defendant.

Before WILKINS, C. J., and WHITTEMORE, CUTTER, SPIEGEL and REARDON, JJ.

REARDON, Justice.

The defendant was tried by a jury and convicted of stealing a mink stole valued at $400. He is here on appeal under G.L. c. 278, §§ 33A-33G, alleging error, inter alia, in the denial of his motion to postpone trial and in a portion of the judge's charge.

1. The record, including the transcript of testimony, is before us and discloses the following: The defendant was apprehended on September 18, 1961, for the theft which occurred in Springfield on the same day. Prior to his arraignment he was imprisoned in Rhode Island on October 5, 1961. Under date of July 12, 1962, an attorney in Providence, Rhode Island, wrote a letter to the district attorney of Hampden County indicating that he was the local attorney for the defendant and that the defendant had Massachusetts counsel also. He further stated that he expected to be present at the trial of the defendant, and with the permission of the court, would act as the defendant's co-counsel. The defendant was returned to the Hampden County Superior Court on September 19, 1962, and was arraigned the following day. At that time his attorney of record from Boston, who was not the attorney referred to in the letter previously mentioned, was out of the State on business. Therefore, at the arraignment, where he pleaded not guilty, he was represented by an associate of his Boston attorney who had heard about the case for the first time the prior night. The defendant sought an opportunity to confer with his attorney of record prior to trial but the judge set the case for hearing for Monday, September 24, 1962, remarking that counsel 'has got to make up his mind by Monday which business is most important to him' and suggesting that the defendant might retain a Springfield attorney. On the day scheduled for trial, the defendant's attorney from Boston withdrew and thereupon an appearance was filed in behalf of the defendant by a Springfield attorney, who had first consulted the defendant on September 22, 1962. Trial commenced on the morning of September 25, 1962, in the face of a motion by new counsel for a two weeks' postponement in order to provide time for him to interview witnesses, file a motion for a bill of particulars, and generally prepare a defence. The motion for postponement was denied. During the trial the defence cross-examined none of the witnesses on the ground that counsel was not prepared to do so in any meaningful or effective manner. The defendant did not call any witnesses, complaining at one point that there was one witness in Rhode Island who was unavailable to him because of lack of time in which to find and interview him.

Persons accused of crime have the right to counsel and also the right that counsel may have a reasonable time in which to prepare a defence. Lindsey v. Commonwealth, 331 Mass. 1, 2, 5, 116 N.E.2d 691. Jones v. Commonwealth, 331 Mass. 169, 171, 117 N.E.2d 820. Where, as in this case, the attorney of record withdraws and a new counsel comes on the scene, it lies within the discretion of the judge whether on motion a continuance will be granted. In acting upon the motion he must give full consideration to the rights discussed in the Lindsey case, supra. Commonwealth v. Binkiewicz, 342 Mass. 740, 745, 175 N.E.2d 473. We cannot say that there was an abuse of that discretion here. The defendant had been indicted in January, 1962, at which ...