6 Mass. App. Ct. 952 | Mass. App. Ct. | 1978
The defendant appeals under G. L. c. 278, §§ 33A-33G, from his conviction on two counts of receiving stolen goods following a jury trial in the Superior Court. We conclude that there was no error. 1. The trial judge did not abuse his discretion in denying the defendant’s pretrial motions for severance and for a continuance. While a defendant’s need to obtain exculpatory testimony from a codefendant (the ground advanced in support of the defendant’s motion) may in some cases be a proper ground for severance (see United States v. Echeles, 352 F.2d 892, 897-899 [7th Cir. 1965]; Byrd v. Wainwright, 428 F.2d 1017 [5th Cir. 1970]; United States v. Shuford, 454 F.2d 772, 776-777 [4th Cir. 1971]), the judge was not required to sever solely on the basis of the codefendant’s affidavit, in which the codefendant denied participating in the alleged offenses or having had any conversation with certain government witnesses and stated that he would testify in the defendant’s behalf only if the codefendant’s trial were severed from and preceded that of the defendant. While such proposed testimony may have had a bearing upon the codefendant’s own involvement in the crimes charged or upon the credibility of certain witnesses, there was no showing that the testimony would in fact have exculpated the defendant. See Commonwealth v. Sullivan, 354 Mass. 598, 606-607 (1968), cert. denied, 393 U.S. 1056 (1969); Commonwealth v. Beneficial Fin. Co., 360 Mass. 188, 222 (1971), cert. denied, 407 U.S. 914, and sub nom. Farrell v. Massachusetts, 407 U.S. 910 (1972); Commonwealth v. Hogg, 365 Mass. 290, 297 (1974); United States v. Abraham, 541 F.2d 1234, 1239-1240 (7th Cir. 1976), cert. denied, 429 U.S. 1102 (1977); United States v. Smolar, 557 F.2d 13, 21 (1st Cir.), cert. denied, 434 U.S.
Judgment affirmed.