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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Hernandez, 421
Supreme Judicial Court of Massachusetts,
Argued
Decided
W. Matthew Iler, Assistant
District Attorney, for Com.
Risa E. Freeman, Quincy, for
defendant.
Before LIACOS, C.J., and WILKINS, LYNCH and O'CONNOR, JJ.
LYNCH, Justice.
The
Commonwealth appeals from a Boston Municipal Court judge's order dismissing a
criminal complaint [421
There was
no evidentiary hearing in this matter.
The Commonwealth says that its evidence would warrant the
following: Police saw the defendant sell
marihuana to another individual on
Prior to
trial, defense counsel moved for disclosure of the surveillance location. In support of the motion, the defense
attorney stated, "Basically your Honor, I am looking for the exact
location from which the officers who made the observation, made those
observations. This is so that the
Defendant has an opportunity ... to determine whether the officer could have
made the observations that the officer is saying he made." (FN2)
[421 Mass. 274] The judge ordered the Commonwealth to disclose the building and
floor from which the observations were made, but not the apartment number. (FN3)
On April 22, the Commonwealth moved for reconsideration of the
disclosure order. After the judge denied
the motion for reconsideration, the Commonwealth refused to disclose the
surveillance location. When the judge
asked for an explanation, the Commonwealth attempted to call a police officer
as a witness, but the judge refused to hear from the witness. The Commonwealth stated that disclosing the
location would jeopardize an ongoing investigation into gang‑related
activity and possible weapons charges.
According to the Commonwealth, the police were willing to
"sacrifice a case involving marijuana for having some involving
arms."
The judge
dismissed the case without hearing any evidence or making any findings of fact
or rulings of law.
The case
presents two issues on appeal. First,
was it proper for the judge to order disclosure of the surveillance
location? Second, if the disclosure
order was valid, was it proper for the judge to dismiss the complaint for the
Commonwealth's failure to comply with it?
We answer these questions in turn.
"In
the proper exercise of discretion, a judge may order discovery of information
necessary to the defense of a criminal case.
Mass.R.Crim.P. 14(a)(2), 378 Mass. 874
(1979)." Commonwealth v. Cronk,
396 Mass. 194, 198, 484 N.E.2d 1330 (1985).
[1] The
Commonwealth argues that it had a right to withhold the location of the police
observation post under the so‑called "surveillance location
privilege." This privilege has
been analogized to the well‑established informer's privilege. See
Commonwealth v. Lugo, 406 Mass. 565, 570, 548 N.E.2d 1263 (1990). A similar standard exists for evaluating
claims of privilege under [421 Mass.
275] both categories. Id. See
Commonwealth v. Rios, 412 Mass. 208, 213, 588 N.E.2d 6 (1992).
[2] We
have distinguished between a demand for disclosure of privileged information at
a pretrial hearing, such as a motion to suppress, and a demand for disclosure
at trial, where the issue is the defendant's ultimate guilt or innocence. See
Commonwealth v. Lugo, supra at 571, 548 N.E.2d 1263. Disclosure has been required at trial where the
material is "relevant and helpful to the defense of an accused, or is
essential to a fair determination of a cause." Id. at 570, 548 N.E.2d
1263, quoting Roviaro
v. United States, 353 U.S. 53, 60‑61, 77 S.Ct.
623, 627‑28, 1 L.Ed.2d 639 (1957).
[3] Here,
it is likely that disclosure of the surveillance location would have been
relevant and helpful to the defense where there was every indication that the
testimony of the observing police officers was crucial to the Commonwealth's
case. (FN4) In order properly to cross‑examine the
police officers on their observations from the surveillance location, the
defendant would need to know the distance from the observation post to the site
of the alleged crime, as well as the existence of any obstructions or other
impediments to a clear view of the playground.
"A fair and full cross‑examination to develop facts in issue
or relevant to the issue is a matter of absolute right and is not a mere
privilege to be exercised at the sound discretion of the presiding judge, and
the denial of the right is a prejudicial error." Commonwealth v. Lugo, supra
at 572, 548 N.E.2d 1263, quoting
Commonwealth v. Johnson, 365 Mass. 534, 543, 313 N.E.2d 571 (1974). The judge clearly understood this principle
when he issued the disclosure order.
(FN5)
[421 Mass. 276] Moreover, "[t]he case for confidentiality is further
weakened because here we are not concerned with protecting a confidential
informant or an informant's property or even, in any significant way, with
protecting the physical safety of police officers." Commonwealth v. Rios, supra
at 213 n. 7, 588 N.E.2d 6.
[4] The
Commonwealth argues that the judge erred in ordering disclosure because the
defendant failed to make a threshold showing that the view from the surveillance
post was obstructed. The Commonwealth
misunderstands the defendant's burden.
"There is ... no requirement that a defendant, denied access to
evidence that might prove helpful in his defence,
must make a specified showing of just what the evidence might have proved and
how far he [would be] prejudiced by the withholding." Commonwealth v. Lugo, supra
at 572, 548 N.E.2d 1263, quoting
Commonwealth v. Johnson, supra at 547, 313 N.E.2d 571.
[5] All
that is required is that the defendant make a preliminary showing that
disclosure would provide material evidence needed by the defendant for a fair
presentation of his case to the jury. Commonwealth v. Lugo, supra at 574, 548
N.E.2d 1263. See Commonwealth v. Healis, 31 Mass.App.Ct. 527, 531, 580 N.E.2d 1047 (1991). Although the judge is not required to make
findings in every case, disclosure should not be required, except in an in
camera proceeding, unless the reason for disclosure is apparent on the record.
Commonwealth v. Douzanis, 384 Mass. 434,
437 n. 6, 443, 425 N.E.2d 326 (1981).
[6] Here,
the circumstances of the case as described above were sufficient to meet the
preliminary showing of need that we have required in cases involving disclosure
of similar privileged information at trial.
The judge's comment at the hearing, quoted in note 5, supra, demonstrated that he ordered
disclosure to give the defendant a basis for determining what the police
officer, the Commonwealth's principal witness, could observe from the
surveillance post. The judge did not
abuse his discretion in ordering disclosure.
The second
issue concerns the propriety of the judge's dismissal of the complaint. "Upon the failure of the Commonwealth to
comply with a lawful discovery order, a judge 'may [421 Mass. 277] impose
appropriate sanctions, which may include dismissal of the criminal charge.'
"
Commonwealth v. Cronk, supra at 198, 484
N.E.2d 1330, quoting Commonwealth v. Douzanis, supra at 436, 425 N.E.2d 326. Mass.R.Crim.P.
14(c)(1), 378 Mass. 880 (1979). (FN6)
[7][8] Dismissal
with prejudice is appropriate in cases of egregious prosecutorial misconduct or
on a showing of prejudice (or a substantial threat thereof), or
"irremediable harm" to the defendant's opportunity to obtain a fair
trial. See Commonwealth v. Jacobsen, 419 Mass. 269, 276, 644 N.E.2d 213
(1995) ("egregious misconduct or at least a serious threat of
prejudice"), quoting Commonwealth v.
Cinelli, 389 Mass. 197, 210, 449 N.E.2d 1207,
cert. denied, 464 U.S. 860, 104 S.Ct. 186, 78 L.Ed.2d
165 (1983); accord Commonwealth v. Connelly, 418 Mass. 37, 38, 634 N.E.2d 103
(1994). See also Commonwealth v. Lewin, 405 Mass. 566,
579, 542 N.E.2d 275 (1989) ( "showing of irremediable harm" or
"prosecutorial misconduct that is egregious, deliberate, and
intentional"), quoting Commonwealth
v. Cronk, supra at 198‑199, 484 N.E.2d
1330. In such cases, we have held that,
before dismissing the complaint, the judge needs to make a finding as to
"whether the prosecutor's ... response to discovery orders caused such
irreparable prejudice that the defendant
[421 Mass. 278] could not
receive a fair trial if the complaint were reinstated."
Commonwealth v. Cronk, supra at 201, 484
N.E.2d 1330.
In
applying this test we have never upheld the dismissal of a complaint or
indictment for misconduct in the absence of a showing of prejudice. See
Commonwealth v. Phillips, 413 Mass. 50, 59, 595 N.E.2d 310 (1992);
Commonwealth v. Lewin, supra at 586, 542
N.E.2d 275; Commonwealth v. King, 400 Mass. 283, 292,
508 N.E.2d 1382 (1987) ("It may be that, in the absence of prejudice or
substantial threat of prejudice, an indictment should never be
dismissed").
Here the
record reveals (and neither party disputes) that the judge held no evidentiary
hearing on the motion to dismiss, nor did he make any findings of fact in
support of his ruling.
In various
situations we have held that the intentional failure of prosecutors to comply
with a discovery order to turn over exculpatory evidence was not sufficiently
egregious to require dismissal without a finding of prejudice. See
Commonwealth v. Cronk, supra at 199, 484 N.E.2d
1330;
Commonwealth v. Lam Hue To, 391 Mass. 301, 313‑314,
461 N.E.2d 776 (1984). See also Commonwealth v. Lewin,
supra at 586‑588, 542 N.E.2d 275 (dismissal of murder charges because
of police perjury and failure to disclose informant's identity was improper,
where judge's finding of irremediable harm was based on egregious nature of
misconduct and not showing of prejudice); Commonwealth v. Light, 394 Mass. 112, 114‑115,
474 N.E.2d 1074 (1985) (unintentional failure to disclose exculpatory evidence
insufficient for dismissal without finding of prejudice).
In cases
where prosecutorial misconduct threatened a defendant's constitutional rights,
we have required a showing of prejudice to justify a dismissal. For example, in Commonwealth v. Jacobsen, supra at 276‑277, 644 N.E.2d 213,
we concluded that a warrantless arrest was not
sufficiently egregious to uphold a dismissal, where there was no showing that
the misconduct impeded the defendant's ability to obtain a fair trial. Instead, we noted, "the remedy for an
illegal arrest is suppression of the evidence tainted by the police
misconduct." Id. at 275, 644 N.E.2d 213. See also
Commonwealth v. Phillips, supra at 58‑59, 595 N.E.2d 310 (proper
remedy for illegal search was suppression, not dismissal); [421 Mass. 279]
Commonwealth v. Hine, 393 Mass. 564, 572, 471
N.E.2d 1342 (1984) (dismissal not warranted where police improperly
interrogated defendant).
Even where
the misconduct interferes with the attorney‑client relationship, we have
never invoked the drastic remedy of dismissal absent a showing of
prejudice. See Commonwealth v. King, supra at 292, 508 N.E.2d 1382 (detectives'
attempts to tape conversations between defendant and attorney not sufficiently
egregious without showing of prejudice, where prosecutorial team was unaware of
misconduct); Commonwealth v. Cinelli,
supra at 210‑211, 449 N.E.2d 1207 (detectives' single postarraignment interview of defendant without attorney
present insufficiently egregious for prophylactic dismissal). Cf.
Commonwealth v. Fontaine, 402 Mass. 491, 496‑497, 524 N.E.2d 75
(1988) (dismissal upheld where prosecutorial team videotaped private
conversation between defendant and attorney, and where motion judge found that
defendant was prejudiced thereby); Commonwealth v. Manning, 373 Mass. 438,
443‑444, 367 N.E.2d 635 (1977).
(dismissal upheld where members of prosecutorial team spoke with
defendant outside presence of his attorney to induce him to become informer and
where judge found prejudice to defendant).
(FN7)
[9] We
therefore vacate the order dismissing the complaint, and remand the case for a
determination whether the prosecutor's refusal to disclose the surveillance
location "caused such irreparable prejudice that the defendant could not
receive[421 Mass. 280]
a fair trial if the complaint were reinstated." Commonwealth v. Cronk, supra at 201, 484 N.E.2d 1330. (FN8)
So ordered.
(FN1.) The record before us does not make
clear whether the judge dismissed the complaint with or without prejudice. We shall assume that the dismissal was with
prejudice.
(FN2.)
The defendant also filed a written motion in support of disclosure. It is unclear from the record whether the
motion was before the judge when he issued his order. Therefore, we will assume that the judge
ruled on the basis of the oral motion alone.
(FN3.)
The Commonwealth contended that, in this case, disclosure of the building and
floor would be tantamount to disclosure of the exact location.
(FN4.)
The Commonwealth asserts in its brief that it may have called the buyer
arrested the same day as the defendant as a witness in the case. This assertion is not supported in the
record, which refers only to police officers as potential witnesses. Even if the Commonwealth were to produce
another witness to the crime who was not in the surveillance location, the
police observations still would constitute a very important element of the
Commonwealth's case against the defendant.
(FN5.)
The judge stated at the April 11, 1994, hearing that disclosure of building and
floor of the surveillance post "will give Defense Counsellor
... enough to determine what the ... view of the particular officer was at that
time."
(FN6.)
It is important to distinguish the issue presented here from other cases
involving dismissal of a criminal charge or indictment. This is not a case where the judge has
ordered dismissal because the indictment or complaint is legally invalid. See Angiulo v. Commonwealth, 401 Mass. 71, 79, 514 N.E.2d
669 (1987) (double jeopardy bars prosecution); Commonwealth v. O'Dell, 392
Mass. 445, 447, 466 N.E.2d 828 (1984) (improper presentation of evidence to
grand jury); Commonwealth v. Salman,
387 Mass. 160, 167, 439 N.E.2d 245 (1982) (grand jury integrity impaired);
Commonwealth v. McCarthy, 385 Mass. 160, 163, 430 N.E.2d 1195 (1982)
(insufficient evidence presented to grand jury to justify arrest of defendant).
Nor is this
a case in which the judge dismissed a case over the Commonwealth's objection on
the ground that the Commonwealth had insufficient evidence to win at
trial. See, e.g., Commonwealth v. Thurston, 419 Mass. 101, 104, 642 N.E.2d 1024
(1994);
Commonwealth v. Pellegrini, 414 Mass. 402,
405‑406, 608 N.E.2d 717 (1993); Commonwealth v. Brandano,
359 Mass. 332, 337, 269 N.E.2d 84 (1971).
Cf. Commonwealth v. Gordon,
410 Mass. 498, 502‑503, 574 N.E.2d 974 (1991). Under the preceding cases, this court has set
out procedural safeguards under which affidavits must be filed and the judge
must hold an evidentiary hearing on disputed matters unless the judge
concludes, on the basis of the affidavits, that the interests of public justice
require a dismissal. Commonwealth v. Thurston, supra at 104‑105,
642 N.E.2d 1024. See Commonwealth v. Brandano,
supra.
(FN7.)
There is some language in Commonwealth v.
Fontaine, 402 Mass. 491, 524 N.E.2d 75 (1988), indicating that the parties
agreed to presume prejudice to the defendant on the basis of the facts. Id.
at 495, 524 N.E.2d 75 ("[t]he Commonwealth agrees that, under the
circumstances of this case, it bears the burden of proving that no prejudice to
the defendant resulted from the [prosecutorial misconduct]"). It is also true, however, that the judge in Fontaine made specific findings of fact
and rulings of law on the issue of prejudice, on which the court appears to
rely.
Id. at 494‑495, 524 N.E.2d 75. Taken together, Fontaine and Manning may
stand for the application of a strict standard in cases where the prosecutorial
team's "intentional, egregious conduct threatens a defendant's right to
counsel." Commonwealth v. Lewin,
405 Mass. 566, 586 n. 13, 542 N.E.2d 275 (1989).
(FN8.) It would, of course, be proper for the
judge to impose some other sanction for failure to comply with his discovery
order such as suppression of the police officer's testimony or dismissal
without prejudice.