984 N.E.2d 872
Mass. App. Ct.2013Background
- After trial, defendant convicted of resisting arrest and possession of marijuana with intent to distribute.
- Defendant challenged resisting arrest conviction based on denial of funds to locate eyewitnesses; funds were later granted before trial.
- Initial denial occurred without a clear record of a hearing or right to interlocutory appeal; later renewal of funds occurred well before trial.
- Judge ultimately allowed funds for interview of witnesses, but the trial record lacks detail on what eyewitnesses were found or how they impacted defense.
- Defendant argued suppression issue for the drug conviction; this claim was waived and, in any event, no merit found on the suppression record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of § 27C denial issue | Defendant (Commonwealth) argues preserved via trial record | Defendant preserved by raising issue on appeal; failure to timely interlocutory appeal | Not preserved on direct appeal |
| Effect of delayed funding on prejudice | Delay prejudiced eyewitness identification | Delay could have prevented locating witnesses upon remand | No substantial risk of miscarriage given record and later funding |
| Authority to open fanny pack without full patfrisk | Pagan requires patfrisk before opening pliable container | Circumstances justified opening without prior patfrisk | Waived; if considered, open was reasonable under circumstances |
| Motion to suppress and defense instruction | No error in denial of suppression; no missing-witness instruction error | Requested defense instruction warranted; error in denial | Suppression denial affirmed; missing-witness argument not preserved |
Key Cases Cited
- Commonwealth v. Lockley, 381 Mass. 156 (Mass. 1980) (standard for funding denial reasonableness; need for hearing and potential interlocutory appeal)
- Commonwealth v. Zimmerman, 441 Mass. 146 (Mass. 2004) (postconviction viability of § 27C issues when no notice of appeal rights)
- Commonwealth v. Jackson, 447 Mass. 603 (Mass. 2006) (preservation of issues raised at trial for direct appeal)
- Commonwealth v. Lockley, 381 Mass. 156 (Mass. 1980) (preservation and procedure for § 27C challenges)
- Commonwealth v. Wick, 399 Mass. 705 (Mass. 1987) (remand to consider § 27C issues for potential new trial)