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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Gliniewicz,
398
Supreme Judicial Court of Massachusetts,
Argued
Decided
Donald A. Harwood,
[398
Andrew Silverman, Committee for Public Counsel
Services,
Before [398
[398
After a
jury trial in the Superior Court the defendants, Charles S. Gliniewicz
and John A. Durning, Jr., were each found guilty on
two indictments charging assault and battery with a dangerous weapon, and one
charging breaking and entering a building in the nighttime. (FN2)
They were each found not guilty on two indictments charging armed
assault with intent to commit murder.
Each
defendant was sentenced to
[398
The
convictions stemmed from an incident on
Both
defendants had patronized the canteen on the evening of January 26, 1982. Ralph Costello testified that after closing
time he saw the defendants "two corners up" from the canteen. Ralph Costello identified the defendants as
the intruders who stabbed him and his brother.
During the
investigation at the crime scene, the police found bootprints
apparently left by the intruders. The
prints were photographed and introduced at trial. A pair of workboots
was seized from Gliniewicz on March 17, 1982, and
from Durning on March 27, 1982.
In June,
1982, the boots of both defendants were chemically tested by Robert Sullivan of
the Department of Public Safety in Boston.
He found no blood on either pair of boots. In August, 1982, the boots were delivered to
John Abbott, a forensic serologist employed by Serological Research Institute
of Burlington. He conducted tests which,
he testified, were capable of detecting far smaller quantities of blood than
the tests conducted by Sullivan.
(FN3) Abbott found evidence of
human blood on the boots of both defendants.
Prior to
trial, both defendants filed motions to suppress the results of the serological
tests conducted by Abbott. Both motions
were denied.
[1] 1. Motions to suppress the serological tests
by Abbott. The defendants argue
that their due process rights have been violated because pretrial tests
performed on their boots destroyed the evidence from which the Commonwealth's
expert concluded that the boots were stained with human blood. The pretrial conference report executed under
the provisions of Mass.R.Crim.P.
11(a)(2)(A), 378 Mass. 862 (1979), required the Commonwealth to allow the
inspection of "material and relevant physical evidence and documents ...
[i.e.] boots, knives, pictures and any other physical evidence...." It also required the Commonwealth to provide
to the defendant in writing, "reports ... of scientific tests." The date for such discovery was to be on or
before June 10, 1982; the date was
subsequently extended to July 22, 1982, for the defendant Durning. Because
[398 Mass. 747] we conclude that
the Commonwealth did not meet its obligations under the pretrial conference
report, we order that the defendants be afforded new trials and we do not reach
the due process claims.
Massachusetts
R.Crim.P. 11(a)(2)(A) states, in pertinent part: "The conference report shall contain a
statement of those matters upon which the parties have reached
agreement.... Agreements reduced to
writing in the conference report shall be binding on the parties and shall
control the subsequent course of the proceeding." Such agreements reduced to writing may be
equivalent to discovery orders. Commonwealth v. Pope, 19 Mass.App.Ct. 627, 630 n. 3, 476 N.E.2d 969 (1985).
Commonwealth v. Scalley, 17 Mass.App.Ct. 224, 230 n. 8, 457 N.E.2d 298 (1983).
This court
has upheld a trial judge's denial of a motion to exclude testimony where the
statement was belatedly disclosed in contravention of a discovery agreement but
where the defendant made no showing of prejudice. Commonwealth v. Cundriff, 382 Mass. 137, 148‑151, 415 N.E.2d 172
(1980), cert. denied, 451 U.S. 973, 101 S.Ct. 2054,
68 L.Ed.2d 353 (1981). See also Commonwealth v. Pope, supra, 19 Mass.App.Ct. at 629‑631, 476 N.E.2d 969 (denial of
motion to exclude belatedly disclosed witness upheld where discovery agreement
violated but defendant made no showing of prejudice).
Additionally,
this court has held that remedial action under Mass.R.Crim.P.
14(c)(1), 378 Mass. 874 (1979), was warranted as a sanction for noncompliance
with a discovery order where the prosecutor's failure to disclose exculpatory
evidence violated both the defendant's constitutional rights and a court order,
and prejudice resulted. Commonwealth v. Lam Hue To, 391 Mass.
301, 310, 461 N.E.2d 776 (1984). The
granting of a motion to dismiss (rather than a new trial) would be an
appropriate remedy "where failure to comply with discovery procedures
results in irremediable harm to a defendant that prevents the possibility of a
fair trial." Id. at 314, 461 N.E.2d 776. See also
Commonwealth v. Murchison, 392 Mass. 273, 276, 465 N.E.2d 256 (1984).
In the
present case we are confronted with a different situation, the destruction of
evidence by the Commonwealth in the process of testing, which evidence was the
subject of a pretrial written agreement to produce for inspection. When the boots of both defendants were
delivered to Abbott for testing, [398
Mass. 748] the assistant district
attorney authorized Abbott to do whatever he needed to the boots, including
cutting into them. The defendants claim
that this violated the pretrial agreement to permit defense inspection of the
boots. We agree.
The
testing of the defendant's boots, conducted by Abbott involved a two step
process. The first was an ortho‑tolidine test whereby a small section of the
item to be tested was wiped with filter papers.
The papers were then treated with chemicals and the reaction indicated
the presence or absence of blood. This
procedure initially requires a subjective determination regarding the rapidity
of development and intensity of the change in color in assessing the presence
of blood.
The second
step was electrophoresis, which involved preparing liquid extracts from a piece
of the boot of one of the defendants and the lace of the boot of the other
defendant. The liquids were then poured
into a gel substance and treated with electric current to detect the presence of
protein material. Abbott's analytical
report dated September 8, 1982, found that "[t]races of human blood were
demonstrated to be present" on the lacing of the right boot of Durning,
and on the top stitching of the toe area of the left boot of Gliniewicz. Abbott
further stated, "The quantity was insufficient for further
testing." Blood was not detected
on the other boots.
The
pretrial agreement was violated because the boots had been altered by the
testing so that comparable testing by the defendants was not possible. In denying the defendants' motions to
suppress the results of the tests done by Abbott, the judge found that no
prejudice to the defendants was demonstrated "because the crucial evidence
has been effectively preserved."
No one disputes the fact that the sections of the defendants' boots that
tested positive were destroyed in the testing.
While the results of the tests may have been available, there was no way
to duplicate those tests. The trial
judge himself acknowledged this.
"Although Mr. Abbott necessarily consumed the blood samples and no
further tests may now be conducted to duplicate his results or to further
analyze the substance in question, the results of his testing are available for
the examination of the defendants' experts." Thus, in ruling [398 Mass. 749] on the
motions to suppress, the judge erred when he concluded that there was no
prejudice to the defendants.
Furthermore,
the defendants received no notice of the impending tests, and thus were not
able to have their own expert present to observe and potentially to refute the
subjective aspects of the testing.
Here we
have a case where there was a pretrial agreement to provide items for
inspection, the items were effectively destroyed by the Commonwealth, the destruction
was intentional or at least condoned by the Commonwealth, the evidence was
material and its destruction resulted in prejudice to the defendants. In such circumstances, we conclude that it
was unfair for the Commonwealth to make use of the tests. To make matters worse, the prosecutor
commented in his closing argument that the positive results obtained by Abbott
were "not [ones] refuted by any expert testimony by the defense." The motions to suppress the results of the
tests should have been granted and the defendants must have new trials.
It is
necessary that we comment on the two separate issues raised by Gliniewicz, as they may arise at retrial.
[2] 2. Seizure of the boots. Gliniewicz
challenges the judge's denial of his motion to suppress a pair of boots taken
from him when he was arrested. Gliniewicz claims that there was no justification for a warrantless seizure of his boots. At the hearing on the motion to suppress,
Officer Donald Shoemaker testified that Gliniewicz
was arrested on March 13, 1982, pursuant to an arrest warrant and that he never
obtained a search warrant in relation to Gliniewicz. In the course of executing the arrest
warrant, he told the defendant to get dressed, the defendant did so, and he was
then taken to the police station.
Pursuant to official policy, the boots were taken from the defendant
after he was booked and before he was placed in a cell. After the boots were taken, Officer Shoemaker
noticed that: the soles of the boots
appeared similar to the tread on the bootprints
observed in the canteen on the day of the incident; they appeared to be the boots the defendant
was wearing the day when he was interviewed;
and the boots appeared to have bloodstains on them. After making these observations, Officer [398 Mass. 750] Shoemaker seized the boots, tagged them as evidence, and
subsequently sent them to State police headquarters for examination.
Once a
defendant has been arrested and is in custody, clothing that constitutes
evidence may be taken from him. United States v. Edwards, 415 U.S. 800,
808, 94 S.Ct. 1234, 1239, 39 L.Ed.2d 771 (1974).
Commonwealth v. Appleby, 358 Mass. 407, 412‑413, 265 N.E.2d
485 (1970). Moreover, an inventory
search conducted without a warrant has been upheld where it was conducted in
accordance with standard police procedure and was not a pretext for a
search. See Commonwealth v. Hason, 387 Mass. 169,
177‑178, 439 N.E.2d 251 (1982). It
is clear, therefore, that the seizure of the boots did not violate Gliniewicz's constitutional rights. The denial of the
motion to suppress the boots was not error.
[3][4][5]
3. Double jeopardy challenge by Gliniewicz. Gliniewicz claims that his right to be free from double
jeopardy was violated by the imposition of consecutive sentences. Although the defendant did not raise such a
challenge at sentencing, this court may take notice on its own motion of
duplication of sentences. See Commonwealth v. Stewart, 375 Mass. 380,
393, 377 N.E.2d 693 (1978). Consecutive
sentences are disallowed where "one crime could have been proved
completely by evidence forming part of the necessary proof of the other
crime." Commonwealth v. Hogan, 379 Mass. 190,
194, 396 N.E.2d 978 (1979), citing
Commonwealth v. Stewart, supra, 375 Mass. at 390‑393, 377 N.E.2d 693. See
Commonwealth v. Jones, 382 Mass. 387, 395, 416 N.E.2d 502 (1981)
(protection against multiple punishments for duplicitous convictions extends to
concurrent as well as consecutive sentences).
Similarly, they may not be imposed unless the conviction of one offense
requires proof of an additional fact not required for the conviction of the
other offense. Commonwealth v. Ford, 397 Mass. 298, 302,
490 N.E.2d 1166 (1986), citing Morey v.
Commonwealth, 108 Mass. 433, 434 (1871).
See Commonwealth v. Hogan, supra,
379 Mass. at 195, 396 N.E.2d 978. The
defendant Gliniewicz was charged with violating G.L. c. 266, § 14, which proscribes breaking and entering a
dwelling in the nighttime with intent to commit a felony and being armed or
committing armed assault after such breaking and entering. The felony alleged was burglary. He was convicted of the lesser [398 Mass. 751] included crime of breaking and entering a building in the
nighttime. He was also convicted of
violating G.L. c. 265, § 15A, assault and battery by
means of a dangerous weapon. The crime
of breaking and entering in the nighttime does not involve assault and battery
or the use of a dangerous weapon. The
sentences were not duplicative.
The
judgments are reversed, the verdicts set aside, and the cases remanded to the
Superior Court for new trials.
So ordered.
(FN1.) Two against Charles S. Gliniewicz and three against John A. Durning,
Jr. The defendants were tried together
in the Superior Court.
(FN2.)
The defendants were charged with violation of G.L. c.
266, § 14 (1984 ed.), which forbids breaking and entering a dwelling in the
nighttime with intent to commit a felony and committing armed assault on a
person in such dwelling. They were found
guilty of the lesser included offense of breaking and entering a building in
the nighttime.
(FN3.)
The tests conducted by Abbott are described in more detail infra.