NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1259
COMMONWEALTH
vs.
SENGDAO MOONSAMROUATH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this interlocutory appeal, the Commonwealth claims that
a judge of the District Court erred when he allowed the
defendant's motion to suppress with prejudice after the
Commonwealth was not prepared to go forward with a scheduled
evidentiary hearing. The exclusion of the evidence, which
consisted of a firearm and ammunition seized during a
warrantless search of the defendant's vehicle, precluded the
Commonwealth from prosecuting the case. Because we discern no
egregious prosecutorial misconduct or substantial risk of
prejudice to the defendant, we vacate.
1. Background. The defendant is charged with carrying a
firearm without a license to carry (LTC), in violation of G. L. c. 269, § 10 (a), and possession of ammunition without a firearm
identification (FID) card, in violation of G. L. c. 269,
§ 10 (h) (1).1 The charges stemmed from the discovery of loose
ammunition and a .40 caliber Glock handgun in the vehicle the
defendant was driving when he struck a telephone pole on Woburn
Street in Lowell. The defendant was injured and transported to
the hospital. Police officers who responded to the scene looked
into the car and observed ammunition strewn about the floor and
seats. The police then searched the car and found the firearm
in the trunk.
The defendant moved to suppress the evidence, claiming that
the evidence was seized during an unlawful search. The motion
was first scheduled for a hearing on September 22, 2022. Due to
a scheduling conflict, the defendant filed a motion to continue
the suppression hearing, which was allowed on September 8, 2022.
The hearing was rescheduled to November 9, 2022.
On that date, when the case was called by the clerk, the
defendant answered ready, but the Commonwealth was not. The
prosecutor informed the judge that none of the three police
1 The defendant was originally charged with (1) carrying a firearm without a LTC, in violation of G. L. c. 269, § 10 (a); (2) leaving ammunition unattended, in violation of G. L. c. 269, § 10 (h) (2); and (3) improperly storing a firearm, in violation of G. L. c. 140, § 131L. On January 25, 2022, the Commonwealth amended count two to possession of ammunition without an FID card and filed a nolle prosequi as to count three.
2 witnesses who had been summoned to appear were present. The
judge expressed his frustration with their absence2 but granted
the prosecutor some time to contact the witnesses. By second
call, only one witness had arrived in the courtroom. Another
witness was on his way, but because he had responded to a
homicide scene the night before, the Commonwealth was unsure
whether he would "be in any shape to testify." The third
witness could not be reached at all, and his whereabouts were
unknown. Because all three witnesses were essential to the case
by virtue of their individual roles in the search of the
defendant's car, the Commonwealth answered not ready and
requested a continuance, to which the defendant objected. The
judge denied the Commonwealth's request and summarily allowed
the defendant's motion to suppress.
On December 12, 2022, the Commonwealth filed an emergency
petition for extraordinary relief, pursuant to G. L. c. 211,
§ 3.3 A single justice of the Supreme Judicial Court (SJC)
denied the petition without hearing, determining that the judge
Specifically, the judge stated, "[S]o the Defendant has to 2
be here at 8:30. We all have to be here. Why -- why do the police not have to be here at 8:30? How is their staffing issue -- what -- why is that the Defendant's problem? And I -- that's a rhetorical question."
Subsequently, the Commonwealth requested a stay of 3
proceedings in the District Court, pending the outcome of this petition, but no action was taken on the motion.
3 did not abuse his discretion in denying the Commonwealth's
motion for a continuance. Subsequently, the Commonwealth filed
a motion for clarification on the single justice's ruling, as it
did not address whether the exclusion order was with or without
prejudice. The single justice dismissed the motion for
clarification without prejudice, stating that the Commonwealth
must seek clarification from the motion judge. At a subsequent
hearing, the motion judge ultimately clarified that the
exclusion order was made with prejudice. The motion judge
explained that a ruling without prejudice would be a "non-
sanction" for the Commonwealth, which was not ready for the
suppression hearing and offered no explanation as to why an
essential witness was absent.
The Commonwealth then filed a second emergency petition for
extraordinary relief, pursuant to G. L. c. 211, § 3.4 A
different single justice of the SJC denied the second petition
on the ground that the Commonwealth had an adequate, alternate
remedy as set forth in Mass. R. Crim. P. 15 (a) (2), as amended,
476 Mass. 1501 (2017). The Commonwealth then filed a notice of
appeal in the District Court, as well as a motion for leave to
file a late notice of appeal and late application for leave to
4 The Commonwealth also filed a renewed motion to stay proceedings pending review by the single justice, which the motion judge allowed.
4 appeal, pursuant to Mass. R. Crim. P. 15 (a) (2), with the
single justice of the SJC. After hearing, a third single
justice allowed the Commonwealth's motion and directed that the
interlocutory appeal proceed in this court.
2. Discussion. "Generally, '[t]he decision whether to
grant a motion to continue lies within the sound discretion of
the . . . judge . . . [and a] denial of a continuance will not
constitute error absent an abuse of that discretion.'"
Commonwealth v. Clegg, 61 Mass. App. Ct. 197, 200 (2004),
quoting Commonwealth v. Super, 431 Mass. 492, 496 (2000). In
considering a request for a continuance, however, the judge
"should balance the movant's need for additional time against
the possible inconvenience, increased costs, and prejudice which
may be incurred by the opposing party if the motion is granted."
Clegg, supra, quoting Super, supra at 497. Additionally, the
judge must consider "[w]hether the failure to grant a
continuance . . . would be likely to make a continuation of the
proceeding impossible, or result in a miscarriage of justice."
Clegg, supra, quoting Mass. R. Crim. P. 10 (a) (2) (A), as
appearing in 378 Mass. 861 (1979).
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1259
COMMONWEALTH
vs.
SENGDAO MOONSAMROUATH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this interlocutory appeal, the Commonwealth claims that
a judge of the District Court erred when he allowed the
defendant's motion to suppress with prejudice after the
Commonwealth was not prepared to go forward with a scheduled
evidentiary hearing. The exclusion of the evidence, which
consisted of a firearm and ammunition seized during a
warrantless search of the defendant's vehicle, precluded the
Commonwealth from prosecuting the case. Because we discern no
egregious prosecutorial misconduct or substantial risk of
prejudice to the defendant, we vacate.
1. Background. The defendant is charged with carrying a
firearm without a license to carry (LTC), in violation of G. L. c. 269, § 10 (a), and possession of ammunition without a firearm
identification (FID) card, in violation of G. L. c. 269,
§ 10 (h) (1).1 The charges stemmed from the discovery of loose
ammunition and a .40 caliber Glock handgun in the vehicle the
defendant was driving when he struck a telephone pole on Woburn
Street in Lowell. The defendant was injured and transported to
the hospital. Police officers who responded to the scene looked
into the car and observed ammunition strewn about the floor and
seats. The police then searched the car and found the firearm
in the trunk.
The defendant moved to suppress the evidence, claiming that
the evidence was seized during an unlawful search. The motion
was first scheduled for a hearing on September 22, 2022. Due to
a scheduling conflict, the defendant filed a motion to continue
the suppression hearing, which was allowed on September 8, 2022.
The hearing was rescheduled to November 9, 2022.
On that date, when the case was called by the clerk, the
defendant answered ready, but the Commonwealth was not. The
prosecutor informed the judge that none of the three police
1 The defendant was originally charged with (1) carrying a firearm without a LTC, in violation of G. L. c. 269, § 10 (a); (2) leaving ammunition unattended, in violation of G. L. c. 269, § 10 (h) (2); and (3) improperly storing a firearm, in violation of G. L. c. 140, § 131L. On January 25, 2022, the Commonwealth amended count two to possession of ammunition without an FID card and filed a nolle prosequi as to count three.
2 witnesses who had been summoned to appear were present. The
judge expressed his frustration with their absence2 but granted
the prosecutor some time to contact the witnesses. By second
call, only one witness had arrived in the courtroom. Another
witness was on his way, but because he had responded to a
homicide scene the night before, the Commonwealth was unsure
whether he would "be in any shape to testify." The third
witness could not be reached at all, and his whereabouts were
unknown. Because all three witnesses were essential to the case
by virtue of their individual roles in the search of the
defendant's car, the Commonwealth answered not ready and
requested a continuance, to which the defendant objected. The
judge denied the Commonwealth's request and summarily allowed
the defendant's motion to suppress.
On December 12, 2022, the Commonwealth filed an emergency
petition for extraordinary relief, pursuant to G. L. c. 211,
§ 3.3 A single justice of the Supreme Judicial Court (SJC)
denied the petition without hearing, determining that the judge
Specifically, the judge stated, "[S]o the Defendant has to 2
be here at 8:30. We all have to be here. Why -- why do the police not have to be here at 8:30? How is their staffing issue -- what -- why is that the Defendant's problem? And I -- that's a rhetorical question."
Subsequently, the Commonwealth requested a stay of 3
proceedings in the District Court, pending the outcome of this petition, but no action was taken on the motion.
3 did not abuse his discretion in denying the Commonwealth's
motion for a continuance. Subsequently, the Commonwealth filed
a motion for clarification on the single justice's ruling, as it
did not address whether the exclusion order was with or without
prejudice. The single justice dismissed the motion for
clarification without prejudice, stating that the Commonwealth
must seek clarification from the motion judge. At a subsequent
hearing, the motion judge ultimately clarified that the
exclusion order was made with prejudice. The motion judge
explained that a ruling without prejudice would be a "non-
sanction" for the Commonwealth, which was not ready for the
suppression hearing and offered no explanation as to why an
essential witness was absent.
The Commonwealth then filed a second emergency petition for
extraordinary relief, pursuant to G. L. c. 211, § 3.4 A
different single justice of the SJC denied the second petition
on the ground that the Commonwealth had an adequate, alternate
remedy as set forth in Mass. R. Crim. P. 15 (a) (2), as amended,
476 Mass. 1501 (2017). The Commonwealth then filed a notice of
appeal in the District Court, as well as a motion for leave to
file a late notice of appeal and late application for leave to
4 The Commonwealth also filed a renewed motion to stay proceedings pending review by the single justice, which the motion judge allowed.
4 appeal, pursuant to Mass. R. Crim. P. 15 (a) (2), with the
single justice of the SJC. After hearing, a third single
justice allowed the Commonwealth's motion and directed that the
interlocutory appeal proceed in this court.
2. Discussion. "Generally, '[t]he decision whether to
grant a motion to continue lies within the sound discretion of
the . . . judge . . . [and a] denial of a continuance will not
constitute error absent an abuse of that discretion.'"
Commonwealth v. Clegg, 61 Mass. App. Ct. 197, 200 (2004),
quoting Commonwealth v. Super, 431 Mass. 492, 496 (2000). In
considering a request for a continuance, however, the judge
"should balance the movant's need for additional time against
the possible inconvenience, increased costs, and prejudice which
may be incurred by the opposing party if the motion is granted."
Clegg, supra, quoting Super, supra at 497. Additionally, the
judge must consider "[w]hether the failure to grant a
continuance . . . would be likely to make a continuation of the
proceeding impossible, or result in a miscarriage of justice."
Clegg, supra, quoting Mass. R. Crim. P. 10 (a) (2) (A), as
appearing in 378 Mass. 861 (1979).
Here, where the evidence suppressed was indispensable to
the prosecution, "denying the Commonwealth's motion to continue
and requiring the Commonwealth to proceed without evidence
5 assured an outcome adverse to the Commonwealth and was
tantamount to dismissal with prejudice." Clegg, 61 Mass. App.
Ct. at 201. Therefore, the order at issue must be supported by
"a showing of egregious misconduct or at least a serious threat
of prejudice." Commonwealth v. Connelly, 418 Mass. 37, 38
(1994).
While we are not without sympathy for the situation in
which the motion judge found himself, we cannot conclude that
the prosecutor's failure to ensure that the police officers
would be present on time for the suppression hearing rises to
the level of "egregious misconduct." Connelly, 418 Mass. at 38,
quoting Commonwealth v. Carrunchio, 20 Mass. App. Ct. 943, 944
(1985). To begin with, although the hearing had been continued
once at the request of the defendant, this was the
Commonwealth's first request for a continuance. The prosecutor
successfully contacted two of the witnesses and made a good
faith effort to contact the third prior to the second call.
There was also no evidence suggesting that any of the witnesses
had avoided a subpoena in the past.
We certainly do not condone the failure of two of the
police officers to arrive on time, the failure of the third to
respond to the Commonwealth's communications on the morning of
the suppression hearing, or the failure of the prosecutor to
6 contact the witnesses prior to the first call of the case. See
Clegg, 61 Mass. App. Ct. at 202. However, denying the
Commonwealth's motion to continue and suppressing essential
evidence is a sanction that "should be reserved for 'hard core
transgressions,' not a situation such as this where there is no
basis for concluding that the Commonwealth was not acting in
good faith or that the delay was other than unintentional." Id.
Moreover, despite the fact that the failure of all three
witnesses to appear inconvenienced everyone involved, there is
nothing to suggest that such inconvenience rose to the level of
seriously prejudicing the defendant's ability to receive a fair
trial. See Connelly, 418 Mass. at 39.
We understand the frustration of both the judge and the
defendant from the apparent lack of meaningful "sanctions" to
impose when the Commonwealth is not ready to proceed at a
hearing. See Connelly, 418 Mass. at 39-40 (Liacos, C.J.,
concurring) ("A judge's frustration, when faced with instance
upon instance of calling cases to trial only to find that the
Commonwealth cannot proceed because a necessary police officer
witness has not shown up is, in my view, quite understandable").
We also understand the frustration that the parties, especially
the defendant, continue to experience because the resolution of
this case has been further delayed by the string of reviews
7 before a single justice and the present appeal. However, we are
constrained under the case law to vacate the exclusion order, as
such frustration and delay does not justify what amounts to the
equivalent of a dismissal with prejudice.
Order allowing motion to suppress vacated.
By the Court (Green, C.J.,5 Vuono & Massing, JJ.6),
Clerk
Entered: September 16, 2024.
5 Chief Justice Green participated in the deliberation on this case prior to his retirement.
6 The panelists are listed in order of seniority.