The Commonwealth has now filed its third motion to continue trial of this case. The sole basis for this motion is that a key witness, who is a Lowell police officer, is still on paid injury leave because she suffered a broken nose a month or more ago. The Commonwealth has presented no evidence, nor even made an offer of proof, that the officer is unable to testify due to her prior injury or that she is unavailable for any other reason. The Court finds that the Commonwealth has not established that there is good cause to further delay trial of this case or that a further continuance would be in the interest of justice. It will therefore exercise its discretion to deny the motion. The case will proceed to trial on August 3, 2026, as scheduled.
1. Procedural Background. The Commonwealth obtained grand jury indictments against Mr. Phan on charges of assault and battery of a family or household member and witness intimidation. Mr. Phan was arraigned in the Superior Court on February 20, 2026. At the Commonwealth’s request, he has been held without bail since that date under G.L. c. 276, § 58A. Though the Commonwealth previously represented that the 180-day statutory detention period will expire on August 19, 2026, it now argues that two short periods of time are excludable and therefore the § 58A detention period will not expire until September 21, 2026.
Trial of this case was originally scheduled for June 22, 2026. It was continued to July 14 at Mr. Phan’s request because his counsel was accepted to attend the National Criminal Defense College from June 14 to June 26.
On July 2, 2026, the Commonwealth filed a motion asking that the July 14 trial date be continued. It represented that a Lowell Police who responded to the scene of the alleged assault was a key witness, the Commonwealth learned on July 2 that this officer had sustained a bilateral nose fracture during a recent
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on-duty service call (not related to this case), the injury would affect the officer’s ability to testify at trial, and the officer expected to be out on injury leave until at least July 21, 2026. Over Defendant’s objection, Judge Haggan continued the trial until July 27, 2026.
On July 14, 2026, the Commonwealth moved to further continue the trial date “to any week in August of 2026,” based solely on its representation that this police officer witness would still be out on injury leave as of July 27. The Commonwealth made no representation and presented no evidence that the officer’s broken nose still made it hard for her to speak and testify, even after additional weeks of healing. The Court nonetheless continued the trial for one more week to August 3, over Defendant’s objection, because it was able to accommodate the Commonwealth’s request without displacing any other scheduled trial.
The Commonwealth has now filed a third motion to continue the trial date. This motion is, once again, not supported by any evidence. The sole basis for the motion is the Commonwealth’s representation that the police officer who suffered a broken nose now expects to be out on injury leave until at least August 19, 2026. The Commonwealth asks the Court to set a new trial date after August 19 and before September 21, 2026.
2. Discussion. The Commonwealth has not met its burden of showing that any of its witnesses is unavailable to testify during the week of August 3, 2026, that there is any other good cause to further continue trial of this case, or that the interests of justice would be served by granted a further continuance for no good reason.
“After a case has been entered upon the trial calendar, a continuance shall be granted only when based upon cause and only when necessary to insure that the interests of justice are served.” Mass. R. Crim. P. 10(a)(1). By rule, the factors that a judge must consider in deciding whether to continue a criminal trial include “whether there has been a failure by a party to use due diligence to obtain available witnesses.” Commonwealth v. Burston, 77 Mass. App. Ct. 411, 414–415 (2010) (affirming denial of Commonwealth’s third motion to continue suppression hearing, and grant of defendant’s motion to suppress without a hearing, based on trial court’s finding that prosecutor had failed to exercise due diligence to produce witnesses for scheduled evidentiary hearing), quoting Rule 10(a)(2)(B).
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“Whether a motion for continuance should be granted lies within the sound discretion of the judge, whose action will not be disturbed unless there is patent abuse of that discretion, which is to be determined in the circumstances of each case.” Commonwealth v. Fernandez, 480 Mass. 334, 340 (2018) (affirming denial of defendant’s motion to continue trial), quoting Commonwealth v. Pena, 462 Mass. 183, 189 (2012).
The Court finds that the Commonwealth has not shown there is good cause to further delay trial of this case. The Commonwealth has not shown that its police officer witness is unavailable to testify on during the week of August 3. The Commonwealth’s prior representation that this officer was not able to testify as of the beginning of July because she broke her nose, and its representation during today’s hearing that the officer’s treating physician had to rebreak and reset the officer’s nose several weeks ago, does not establish that she is unable to appear in court and testify for a few hours next week. The Commonwealth failed to present any evidence—by way of an affidavit from the officer, a letter from her treating physician, or otherwise—suggesting that this officer is unable to testify for medical reasons. Compare Commonwealth v. Dorisca, 88 Mass. App. Ct. 776, 782–783 (2015) (fact that pregnant witness had gone into labor four days earlier did not establish that witness remained unavailable due to illness or infirmity).
“Where the Commonwealth claims that its witness is unavailable because of illness or infirmity …, the Commonwealth bears the burden of showing that there is an unacceptable risk that the witness’s health would be significantly jeopardized if the witness were required to testify in court on the scheduled date. To meet this burden, the Commonwealth must provide the judge with reliable, up-to-date information sufficient to permit the judge to make an independent finding.” Commonwealth v. Housewright, 470 Mass. 665, 671 (2015) (applying hearsay exception for prior recorded testimony of witness who is unavailable due to illness or infirmity).
“[S]uch information must be sufficiently detailed ‘about the witness's current medical condition to allow the judge to evaluate the risk that would be posed if the witness were to testify in court—a conclusory assertion is not enough.’ ” Dorsica, 88 Mass. App. Ct. at 781, quoting Housewright, supra. The Commonwealth conceded during today’s hearing that it has no evidence that the officer whose nose was broken is unable to appear and testify next week.
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Whether the police officer witness is medically ready to return to work is a very different question from whether she is able to testify. It is not unusual for a police officer who is on paid injury leave, because they are not physically able to do all of their job functions safely, to testify as a key fact witness in a criminal trial because the injury does not interfere with the officer’s ability to appear in court and testify. The Commonwealth frequently must make similar impositions upon civilian witnesses, who can and are compelled by subpoena to testify during a criminal trial even if they suffer from a painful chronic condition and even if they must take time off from work in order to appear and testify in court. Merely representing that the police witness at issue here remains on injury leave does not establish that she cannot respond to a trial subpoena and testify.
Police officers do not enjoy a common law or statutory privilege not to testify merely because they are on a paid injury leave due to a medical condition that would not interfere with their ability to testify at trial. “Generally, individuals have a duty to testify when subpoenaed because of ‘the fundamental principle that the public ... has a right to every [person's] evidence.’ ” Commonwealth v. Vigiani, 488 Mass. 34, 36–37 (2021), quoting Three Juveniles v. Commonwealth, 390 Mass. 357, 359 (1983). “[N]o citizen, not even the President [of the United States], is categorically above the common duty to produce evidence when called upon in a criminal proceeding.” Trump v. Vance, 591 U.S. 786, 810 (2020). Police officers have the same obligation to provide factual testimony in a criminal case so long as they are able to do so.
In addition, the Court finds that it is not in in the interest of justice to further delay trial of the charges against Mr. Phan for no good reason. As noted above, Mr. Phan has been held without bail for almost six months under G.L. c. 276A, § 58A. “Pretrial detention under § 58A was intended to be short lived, ending on the conclusion of a speedy trial.” Mushwaalakbar v. Commonwealth, 487 Mass. 627, 633 (2021), quoting Abbott A. v. Commonwealth, 458 Mass. 24, 40 (2010). By law, a person detained under this statute “shall be brought to trial as soon as reasonably possible.” G.L. c. 276, § 58A(3). It is not in the interest of justice, and would violate this statutory command, to delay trial of a defendant being held without bail under § 58A merely because the Commonwealth does not wish to interfere with a police officer’s paid time off during injury leave.
Finally, the Court also finds that it is not in the interest of justice to unnecessarily delay trial of another case or cases in the Superior Court’s Lowell
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Criminal Session merely because the Commonwealth hesitates to summons in its police officer witness to testify during her paid injury leave. If the Court were to continue this trial as requested by the Commonwealth, and reschedule the trial in this session to another week between August 19 and September 21, 2026, it would need to delay trial of one or more of the following: (i) indictments charging forcible rape and indecent assault and battery of an eight-year old girl, scheduled for trial on August 24; (ii) an indictment charging assault and battery with a dangerous weapon causing serious bodily injury, also scheduled for trial on August 24; (ii) the two child rape cases scheduled for trial on August 31; (iii) a case concerning the alleged kidnapping and repeated forcible rape of one woman and the attempted murder of the neighbor who tried to come to her aid that is scheduled for trial on September 14; or (iv) the child rape case and the burglary case that are scheduled for trial on September 21.[1]
ORDER
The Commonwealth’s third motion to continue the trial of this case is denied. As previously scheduled, the Court will empanel a jury on Monday, August 3. The trial itself will commence on Tuesday, August 4. The Commonwealth and Defendant shall subpoena all necessary parties to testify.
/s/Kenneth W. Salinger Justice of the Superior Court
July 28, 2026
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[1] During the week of September 8, 2026, this judge will be teaching at a law school’s trial advocacy workshop and thus will be away from court.