Com. v. Scott
| Decision Date | 02 May 1985 |
| Citation | 19 Mass.App.Ct. 983,475 N.E.2d 78 |
| Parties | COMMONWEALTH v. Ernest SCOTT. |
| Court | Appeals Court of Massachusetts |
Eric Brandt, Jamaica Plain, for defendant.
Robert J. Bender, Asst. Dist. Atty., for the Commonwealth.
Before GREANEY, C.J., and KAPLAN and BROWN, JJ.
RESCRIPT.
The defendant was convicted of unarmed robbery following a jury-waived trial in the Superior Court. (A second conviction for assault and battery was placed on file with the defendant's consent, and is not before us, see Commonwealth v. Tavares, 385 Mass. 140, 141 n. 1, 430 N.E.2d 1198 [1982].) The defendant argues that the trial judge erred in refusing to continue the trial to enable his counsel to locate a potential witness. We affirm.
The indictments arose out of an incident at a party in Haverhill during the early morning hours of August 27, 1983. The victim claimed that the defendant approached him at the party, invited him to come outside, demanded money, and, when the victim refused, proceeded to beat and rob him. The defendant entered not guilty pleas to the indictments on September 16, 1983. The case was thereafter continued several times (two of the continuances bore the notation that the continuance date was the date "for trial").
On Wednesday, January 11, 1984, the case was again called for trial. Before trial, defense counsel moved for a one-week continuance to follow up on a lead concerning a woman who had attended the same party as the victim and the defendant. Defense counsel told the judge that she had "reason to believe that this female participated in the ... incident." Defense counsel, however, did not disclose the source of her information. To the extent that the lead came from the defendant, defense counsel stated that she did not feel "obligated to state ... [t]he [d]efendant's version of the facts." Defense counsel indicated that she sought the one week continuance to interview the woman and, if need be, to prepare her to testify at the trial.
The prosecutor opposed the continuance. He argued that there was nothing to show that the woman had witnessed the incident. He also pointed out that the police investigation revealed only that a woman who had been present at the party had been taken into protective custody sometime between twenty minutes to one-half hour after the defendant's arrest. The judge granted the requested one-week continuance over the prosecutor's objection.
On Wednesday, January 18, 1984, the case was again before the same judge for trial. The Commonwealth's witnesses were present. Defense counsel moved for another continuance to locate the woman. Defense counsel indicated that the first address given her by the police for the woman had turned out to be an untenanted building undergoing renovations and that on Friday afternoon (January 13th) she had obtained a new address from the probation office. That address was in Merrimack, about twenty-five miles from Salem. Counsel also represented that she did not have time to locate the woman in the four days intervening between the 13th and the trial date of the 18th. She pointed out that a weekend was involved, that Monday the 16th had been a holiday, and that overall she had "other cases and other responsibilities" to tend to. As to what the woman might say, defense counsel represented that Counsel also stated that she "believe[d] that the girl's testimony corroborates that of the [d]efendant who has a prior criminal record [and] who would require some corroboration on the stand if his record were permitted."
The prosecutor opposed this additional continuance, noting that defense counsel's assertion that the woman was present during the fight was "not supported in any way by an affidavit from the defendant himself." The prosecutor expressed doubt that the woman could be characterized as a material witness because all that was known about her was that she had been taken into protective custody about twenty minutes after the defendant had been arrested. The prosecutor also indicated his view that defense counsel had not been diligent in acquiring the woman's address. He pointed out that defense counsel had waited for a disabled police officer to return to duty to obtain the first address for the woman rather than asking the prosecutor's office for assistance in locating the woman. The judge denied the continuance, and the case went to trial.
"Whether a motion for continuance should be granted ... lies within the discretion of the judge, whose action will not be disturbed unless there is a clear abuse of discretion." Commonwealth v. Watkins, 375 Mass. 472, 490, 379...
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