14 Mass. App. Ct. 1032 | Mass. App. Ct. | 1982
“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 (1978). See Commonwealth v. Gilchrest, 364 Mass. 272, 276 (1973); Commonwealth v. Cavanaugh, 371 Mass. 46, 50-51 (1976); Commonwealth v. Funderberg, 374 Mass. 577, 580-581 (1978). As previously noted, the testimony of the victim (who had returned to Massachusetts from New York State for the trial) and one of the police officers who had displayed the photographs reveals not a scintilla of suggestiveness in the identification procedure. No significance can attach to the fact that the victim might have heard the officers’ discussion of Chase as the person they suspected, since the victim had not known the defendant’s name and names did not appear on the photographs. There was no evidence to
Finally, we note that one of the missing police officers testified at the trial a few days later and was questioned extensively by Chase’s counsel about the challenged identification procedure. This officer’s testimony also revealed nothing improper in the identification, further signifying that his absence at the earlier hearing was harmless to the defendant. Moreover, despite the intervention of a weekend between the first and second days of proceedings, Chase’s counsel apparently took no steps to secure process to compel the remaining witness to attend the trial.
In view of the circumstances, and the principle that the defendant has the burden of establishing that a given identification was unnecessarily suggestive, see Commonwealth v. Botelho, 369 Mass. 860, 867 (1976); Smith, Criminal Practice and Procedure § 529 (1979 Supp.), the judge’s refusal to continue the suppression hearing reveals no “clear abuse of discretion” and denied Chase no constitutional right to due process.
Judgments affirmed.