6 Mass. App. Ct. 866 | Mass. App. Ct. | 1978
The question on appeal is whether the trial judge erred in denying the defendant’s motion (which had been assented to by the prosecutor) for a continuance. In ruling on such a motion a judge must balance the movant’s need for additional time against the prejudice to the Commonwealth. Commonwealth v. Gilchrest, 364 Mass. 272, 274, 276 (1973). Commonwealth v. Cavanaugh, 371 Mass. 46, 51 (1976). There is no "mechanical test” for deciding when denial of a continuance is so arbitrary as to violate a defendant’s right to due process. Each case stands on its own footing. Id. at 51, and cases cited. There was a showing in the instant case that Silva was prejudiced by the unavailability of two witnesses whose testimony would have contradicted that of the only witness, a State police officer, who had connected Silva to the crime. That officer testified that he had recognized Silva as the driver of a stolen truck which had collided with his police cruiser during a high speed, nighttime chase. The officer further testified that he had not arrested any other person as the driver of the truck and that he had not mistaken any other person for Silva. But, according to Silva’s affidavits, one of the unavailable witnesses would have testified that the officer had
Judgments reversed.
Verdicts set aside.