Com. v. Smith

• Decision Date: 03 January 1968
• Parties: COMMONWEALTH v. Louis A. SMITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 917

232 N.E.2d 917

353 Mass. 442

COMMONWEALTH v. Louis A. SMITH.

Supreme Judicial Court of Massachusetts, Barnstable.

Argued Nov. 6, 1967.

Decided Jan. 3, 1968.

Morton Black, New Bedford, for defendant.

Francis W. Keating, Asst. Dist. Atty., for the Commonwealth.

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

REARDON, Justice.

The defendant was convicted on two indictments, one of which charged him with breaking and entering in the nighttime with intent to commit a felony, and the other with possession of burglarious tools. The case is before us under G.L. c. 278, §§ 33A--33G, on a summary of the record, a transcript of the evidence, and assignments of error with which we deal seriatim.

1. Error is alleged in the court's refusal to allow the defendant's motions for severance 'in spite of the fact that the evidence against * * * two defendants was entirely separate and unrelated.' The defendant was brought to trial with one Pacheco who had in the early morning hours of December 11, 1965, been apprehended while fleeing the scene of an attempt to enter a store in the town of Barnstable. There was evidence of the defendant's statement that he had come to Cape Cod with Pacheco, and certain other evidence which sufficiently indicated that the pair was engaged in a common enterprise. The issues of fact to be tried out against the defendant and Pacheco were entirely similar. A single chain of circumstances was involved and there is no valid reason why the several indictments against both should not have been tried together. 'The determination in such a case as to whether the defendants' or the Commonwealth's substantial rights will be prejudiced by consolidation or severance for trial rests in the sound discretion of the judge.' Commonwealth v. Iannello, 344 Mass. 723, 727, 184 N.E.2d 364, 367. See Commonwealth v. Maloney, 348 Mass. 610, 613--614, 204 N.E.2d 891, and cases cited. No error appears in the refusal of the court to grant the motions for severance.

2. The defendant complains of the denial of his motions for continuance 'in that counsel appeared at 10 a.m. (on the morning of the trial) and asked two days to prepare a defense and the Court denied that continuance.' He argues that the appearance of his counsel was filed only minutes before his trial began, and that his counsel was totally unprepared, had undertaken no research, interviewed no witnesses, and 'was in no manner prepared to go forward.' The record discloses that following a preliminary appearance at the District Court in Barnstable, a bill for particulars was filed by other counsel then appearing for him, and he was indicted in April, 1966. He came before the Superior Court at Barnstable on April 6, 1966, accompanied by counsel, ¹ where pleas of not guilty to each of the indictments were entered for him. When his case was reached for trial at the April sitting he did not appear, and on April 21 he was defaulted on the second indictment. On April 26, 1966, his surety was also defaulted. A capias issued on June 3, 1966, and was returned four days later without service. A warrant on this indictment was then issued. Thus, when he appeared for trial on the first Monday of October, 1966, he had had six months in which to ready his defence.

The defendant was entitled to reasonable opportunity to obtain counsel and to prepare a defence. See Jones v. Commonwealth, 331 Mass. 169, 171, 117 N.E.2d 820, and cases cited; Chandler v. Fretag, 348 U.S. 3, 10, 75 S.Ct. 1, 99 L.Ed. 4. See Lindsey v. Commonwealth, 331 Mass. 1, 116 N.E.2d 691; Avery v. State of Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377. And yet '(t)he matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. * * * Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. * * * There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.' Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921.

The undeniable rights of the defendant are thus defined. Nor without weight in our assessment of the action of the court are certain factors which bear mention. This defendant had been represented at the earliest stage of the proceedings against him. He chose to flee the court at a time when his trial was impending. That trial was to take place in county which does not hold continuous sittings for the disposition of criminal business. Having defaulted on his appearance when the court was ready for him, he was possessed of information shortly thereafter that his case would be on trial when the court came in again in October. He had on one occasion disrupted the orderly flow of the court's business, and with months of warning, by his motions he undertook once again to do so. In the interim between court appearances he had ample opportunity to prepare his defence with his former counsel or retain other counsel of his choice and go forward with him. It constitutes no 'myopic insistence upon expeditiousness' to hold this defendant to a trial of which he had knowledge long before the day he filed his motions. The crushing impact of recent developments in criminal law on the ability of the trial courts to handle their business is too well known to require elaboration. The Commonwealth has rights in these circumstances. The defendant has been fully accorded those to which he is entitled. We see no error in the denial of his motions.

3. Assigned as error is the admission of evidence 'as to the search of the defendant's automobile and admitting as evidence the articles seized in connection with such search without a warrant.' It appears that Pacheco was apprehended first. At that time one of the officers present when Pacheco was apprehended proceeded to the roof of the store which was the object of the entry, and while inspecting a hole in the roof allegedly chopped by the defendant or Pacheco was queried from below, 'How is it going up there?' This indication of interest came from the defendant who was standing beside his car in the dark in a dead end alley behind the store. The officer on the roof had seen the defendant arrive in the alley in a car which he parked there. Another officer, a sergeant, who had arrested Pacheco a short time before then, arrived upon the scene and a colloquy between him and the defendant ensued in which the defendant stated he had come to the Cape with Pacheco. The sergeant had seen Pacheco in the area of the store where the defendant had parked his car and was standing, knew there was a hole (i.e. a...