|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Lewin, 405
Supreme Judicial Court of Massachusetts,
Argued
Decided
Michael J. Traft, Sp. Asst. Dist. Atty. (Francis O'Meara, David B. Mark and Susan
Underwood, Asst. Dist. Attys., with him), for the Com.
Max D. Stern (Patricia Garin,
Andrew Good,
Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN,
LYNCH and O'CONNOR, JJ.
WILKINS, Justice.
This case
involves perfidious
Detective
The application for the search warrant. We start our unavoidably lengthy narrative
of the facts and lower court proceedings with the application for the warrant
to search the apartment on the third floor of
On
[405 Mass. 568] Luna's application continued, stating that he himself had seen
people knocking on the apartment door, pushing money through the door, and
receiving folded paper back. He claimed
that on February 15, 1988, he had made a purchase of cocaine through the door
and had done so again on February 16, 1988, using official police department
marked money.
As we
shall see, Luna would later repudiate under oath his sworn representation that
he made the drug purchases on February 15 and 16. He would similarly repudiate John as the
source of any information presented in his application for the search warrant. We shall consider later the source of Luna's
reference to and description of an Hispanic male named Stevie. The fact that on each of the two days
preceding the death of Detective Griffiths an Hispanic male was selling drugs
through the door of the apartment, if true, would prove that the defendant, a
black Jamaican, was not the only person selling drugs from that location about
the time of Griffiths's death.
The
attempt to execute the warrant;
Griffiths's death. At
approximately 8 P.M. on February 17, 1988, members of the Boston police
department drug control unit, including Officers Carlos Luna and Paul Schroeder
and Detectives Sherman Griffiths and Hugo Amate, attempted to execute the
warrant on the third floor at 102‑104 Bellevue Street. Two officers remained outside the building to
prevent any escape. As Griffiths was
attempting with a sledgehammer to break down the door of the third‑floor
apartment at 104 Bellevue Street, shots were fired through the door from the
inside. A bullet struck Griffiths in the
head, killing him. Other officers forced
the door open and found the apartment empty.
The police searched the building.
In the first floor apartment at 104 Bellevue Street they found seven
adults: three blacks who lived in the
apartment, two Hispanic males, one white male, and one black Jamaican male, the
defendant.
The probable cause hearing. As a result of questioning the people found
in the first‑floor apartment and an investigation, the police charged the
defendant with murder. Others were
charged with various drug offenses.
James McConnell, one of the occupants of the first‑floor
apartment, was also charged with [405
Mass. 569] murder. A probable cause hearing was held in early
March, 1988. The charges against persons
other than the defendant were dismissed with the Commonwealth's assent in
exchange for their cooperation.
(FN1) Probable cause was found on
the charges against the defendant.
Evidence
presented at the probable cause hearing indicated that, shortly after noise of
banging and shots was heard, the defendant, who was a drug dealer living alone
on the third floor, entered the first‑floor apartment. The defendant tried to give a gun to Shirley
McConnell who refused to take it. He
then gave it to James McConnell who put it under a mattress, where Officer
Schroeder found it shortly thereafter.
The gun had fired the bullet that killed Griffiths. There was evidence that the person who had
sold drugs from the third floor apartment before the defendant had was a Jamaican
named Stevie.
Officer
Schroeder testified on cross‑examination that he had not participated in
the investigation that had led to the issuance of the search warrant and that
he had not been to 102‑104 Bellevue Street before the day Griffiths was
shot. Later in the course of this case,
by affidavit Schroeder would in effect repudiate this testimony.
Officer
Luna testified on questioning by the defendant that, on February 15, 1988, he
went up to the third floor and said, "Stevie, I need one," placed $60
through the slot in the door, and received cocaine. He had heard that a person who went by the
name Stevie sold drugs there. He
believed that Stevie was an Hispanic. He
went again on February 16, 1988, and made a second buy for $60. Three black males in the building saw
him. One of them said that he thought he
recognized Luna. [405 Mass. 570] Luna's informant John, who had been inside the apartment,
provided the description of Stevie. Luna
testified that he had remained in touch with John off and on and had met with
him on February 15. As we shall see,
based on the record in this case, substantially all this testimony from Luna is
false or probably false.
The motion for disclosure of the informant
and dismissal of the indictments.
On May 11, 1988, a Suffolk County grand jury returned against the
defendant one indictment charging murder, two indictments charging armed
assault with intent to murder, two indictments charging assault with a dangerous weapon, and one indictment
charging carrying a firearm without a license.
On June 24, defense counsel moved for disclosure of the informant John's
identity. On August 17, a judge in the
Superior Court allowed the motion. The
Commonwealth did not appeal from that order.
On August 19, the defendant moved for an order directing the
Commonwealth to produce the informant by a certain date. On September 22, the judge ordered that the
Commonwealth produce the informant within two weeks. The Commonwealth did not do so, and, on
October 20, 1988, the defendant moved to dismiss the indictments. A hearing on the motion was held in early
December.
Luna,
testifying at the hearing on the defendant's motion to dismiss, said that he
relied on information from John in applying for the search warrant. John told Luna that the money and drugs were
passed through a hole in a steel door at 102 Bellevue Street. John said that he had been in the
apartment. John did not "make a buy"
for Luna at the third‑floor apartment.
Luna did
not know John's full name, his address, his education, where he was born, where
he came from, how long he had lived in Boston, who his friends were, or whether
he had ever been arrested. John is not
Hispanic. Luna described John's height,
his weight, the color of his hair and skin, and approximate age. Luna also described various meetings he had
had with John. Luna had spoken to John
two days after the shooting and at various other times, including as recently
as August 29, 1988.
[405 Mass. 571] Defense counsel's investigation uncovered thirty‑one search
warrants that Luna had obtained between June, 1987, and March, 1988,
purportedly relying on information from John.
From 1984 through March, 1988, John had been Luna's principal informant. Among other police officers, only the victim
Griffiths had met John, as far as Luna knew.
Luna had paid John at least $2,000 for information. John had given Luna information about drug
operations in Roxbury, Dorchester, Jamaica Plain, Hyde Park, the South End, and
East Boston.
The
prosecutor asserts that, promptly after the judge's order to produce John, he
told Luna to find John. On September 27,
1988, a deputy police superintendent ordered Luna to find John. Luna and other police officers then undertook
to find him. Substantial time and expense
went into the effort. Luna and Amate
filed numerous written reports describing efforts to locate John. Luna testified during the hearing on the
motion to dismiss the indictments that he had continued to look for John.
Sergeant
Hugo Amate testified at the hearing on the motion to dismiss that he was Luna's
supervisor. On September 27, on
direction from his supervisor, he started looking for John. He believed he had met John only once, during
the week before the shooting, when he was with Griffiths. Amate testified that he could not identify
John but that John had said there was a man named Stevie who was doing the
selling out of the third‑floor apartment at 102 Bellevue Street. John thought Stevie, who looked black, was
Puerto Rican because he spoke with an accent.
On
February 22, 1989, the judge allowed the motion to dismiss.
The disclosure of informant "X." According to the prosecutor, shortly before
the hearing on the defendant's motion to dismiss, he discovered from a review
of the Boston police drug control unit's log of drug purchases that a
controlled purchase of drugs had been made at 102 Bellevue Street on February
17, 1988, the day on which Griffiths was shot.
The [405 Mass. 572] person who made the purchase has been
known as informant X in this proceeding.
(FN2)
Informant
X gave a recorded statement to the police on December 7, 1988. X stated that on February 17, 1988, between 8
P.M. and 8:30 P.M. Officer Luna had brought X to Bellevue Street to make a
purchase of drugs for him. Luna gave X
$60 and told X to go to the door on the right when X reached the third floor. On the third floor X saw three men whom X
identified sometime later as the two Hispanic males and one of the black males
who were arrested on the first floor of the building after Griffiths had been
shot. No one answered a knock on the
righthand door. One of the men said that
nothing was happening over there and that "[t]he happening is over
here." X left the building but
returned a few minutes later. X then saw
the same three men being admitted to the apartment on the left. X made a purchase of cocaine, pushing money
through a hole in the door of the left side apartment on urging from inside the
apartment, spoken in Spanish, to push the money through. There was a hole about the size of a penny at
eye level in the white metal door. X
delivered the cocaine, which was wrapped in a Massachusetts lottery slip, to
Luna. (FN3)
[405 Mass. 573] Not until January 3, 1989, did the prosecutor disclose to the
court or to defense counsel the February 17 drug buy log entry or the existence
of X. Because X claimed that Luna had
directed X to the wrong door, the information X presented tended to undercut
Luna's claim that he had made drug purchases at the third‑floor apartment. In addition, and more important to the
defendant, X's testimony was strongly exculpatory, because it placed persons
other than the defendant in the third‑floor apartment minutes before
Griffiths's death. X played no part,
however, in the judge's decision to dismiss the indictments, which we discuss
next. We shall discuss later our view
that the defendant has not shown that he was prejudiced by any delay in the
disclosure of X and of the fact of X's February 17 drug purchase.
The judge's memorandum of decision. On February 22, 1989, the judge filed a
thorough memorandum of decision explaining the factual and legal basis for his
decision to allow the motion to dismiss the indictments. The judge recounted John's involvement in
providing information concerning the cocaine business on the third floor of 102
Bellevue Street, Luna's casual interest in being able to locate John after Luna
knew of the need to produce John in this case, and the circumstances of the
fruitless search for John.
The judge
concluded that John had material, exculpatory information. John had information that someone other than
the defendant had been operating the cocaine business at 102 Bellevue Street on
days just before Griffiths was shot.
That information would tend to contradict the Commonwealth's theory that
the defendant alone was operating a drug business on the third floor. The judge further concluded that Luna had
intentionally failed to follow police procedures concerning the identification,
supervision, and payment of informers.
He recounted the extensive contact between Luna and John after Griffiths
had been shot, including a meeting ten days after the August 19 order was
entered requiring that John be identified.
According to the judge's findings, for some reason, Luna appears not to
have been advised of that order until September 1. The judge concluded that Luna had obstructed
the ordered disclosure of [405 Mass.
574] John. He ruled that the Commonwealth's failure to
disclose the identity of John and to produce him "was due to deliberate
and egregious inaction by the Commonwealth" and "resulted in
irremediable harm to [the defendant]."
He said that the Commonwealth had not proposed a measure less drastic than dismissal of the indictments as a cure
for its prejudicial misconduct (see
Commonwealth v. Nelson, 26 Mass.App.Ct. 794, 799‑800, 536 N.E.2d 1094
[1989] ) and, therefore, he dismissed the indictments.
The Commonwealth's motion for
reconsideration. On the same day
that the order to dismiss the indictments was entered, the Commonwealth moved
for a rehearing. In less than explicit
terms, the motion suggested that the prosecutor had further facts about John
and his "alleged" information that should be presented to the judge.
On
February 27, the prosecutor first argued the motion for rehearing. He told the judge that he had located an
informant, who has been called informant Y in this proceeding. Informant Y, the prosecutor said, appeared to
be John, but Y's statement contradicted the testimony of Luna, of Amate, and,
to some degree, of Schroeder. The
prosecutor granted that Y could not be the person Luna had described as
John. According to the prosecutor, Amate
and Schroeder had accepted what informant Y had said, knew of him, could have
brought him forward, but chose not to do so.
(FN4) Also, they agreed that Luna
did not make the drug purchase on February 15, 1988, but that Y had done so.
The
prosecutor said that, based on X's statement about the wrong door, he had
suspected Luna had not made a "buy" on the third floor. The judge ordered the prosecutor to present
by March 3 an affidavit concerning the recent disclosures. He ordered Luna, Amate, and Schroeder,
subject to any claim under the Fifth Amendment to the United States
Constitution, to provide affidavits "as soon as they are available,"
and he planned to order the deposition of Y.
On March 3
the prosecutor filed his affidavit.
After setting forth certain background facts concerning the search for
John [405 Mass. 575] and his attempt to impress the police
with the importance of finding John, the prosecutor said that, after the police
had searched for John for three weeks, "I began to become convinced that
either the informant did not exist or that the police were choosing not to
produce him because he would contradict them." On February 9, the prosecutor received an
anonymous telephone call in which he was given a name and an address. He received two further telephone calls on
February 17. An investigation and search
resulted in finding Y on February 24, and interviewing Y on the same day. Y's statement was taken on February 26, and a
meeting was held that day at which Amate, Schroeder, their attorney, and others
were present.
Also on
March 3, the prosecutor disclosed that another informant, known as Z, had been
located. Z's deposition was taken on
March 6. Z's testimony is inconsistent
in certain respects with information given by Y. Z said that Z had made the purchase on
February 16. X's deposition had been
held on March 1, and Y was deposed on March 8.
The depositions and various exhibits were filed with the judge. We agree with the judge that, based on
transcripts of the deposition testimony of Y and Z, their credibility is in
serious question.
On March
21, 1989, the affidavits of the three police officers were docketed. The affidavits state sufficient facts under
oath which, if true, demonstrate that at least Luna and Amate had made
substantial misstatements of fact under oath during earlier portions of this
proceeding, commencing with numerous lies in Luna's application for the search
warrant for 102 Bellevue Street. In
preparing these affidavits, all three officers were represented by counsel who
advised them of the possible consequences of submitting the affidavits. Counsel represented to the motion judge that
each officer intended to testify at any trial.
The
affidavits presented the following facts.
Schroeder arrested Y on February 9, 1988, for possession of controlled
substances. Y offered to provide
information concerning illegal sales of drugs in the Dorchester area. When Schroeder and Amate met Y on February 10, Y pointed out 102‑104
Bellevue Street. Y tried unsuccessfully
to purchase drugs there on that day. Y
described the drug dealer, according to Schroeder, as "a [405 Mass. 576] Hispanic male named either Stephen or Stevie." Amate stated that, when Y hesitated on being
asked for a description of the seller, "I 'threw a description' at
him." Y agreed that the person was
"an Hispanic male, five feet six inches in height, named Stevie."
On
February 15, 1988, Amate and Schroeder met again with Y who made a purchase of
cocaine at 102‑104 Bellevue Street.
Y said that Y had passed money through a hole at eye level in a third‑floor
apartment door and that drugs had been passed back. On February 16, Luna and Amate supervised a
controlled buy at 102‑104 Bellevue Street by the confidential informant
who has been called Z.
Luna swore
that he had prepared the application for the search warrant based on information
from Griffiths concerning Y's purchase on February 15, and his own information
concerning Z's February 16 purchase.
Luna swore that "[t]he affidavit was prepared based upon the
collective information of my squad members and included information provided by
only two civilian informants, Y and Z. I
substituted myself as the drug purchaser in an effort to protect the
confidential informants who had helped our investigation."
The "denial" of the motion for
rehearing. On March 29, 1989, the
judge purported to deny the Commonwealth's motion for reconsideration of the
February 22 order dismissing the indictments.
We think it is clear from the judge's memorandum and order, however,
that in fact he did reconsider the defendant's motion to dismiss the
indictments and concluded not to change his ruling. We thus consider the Commonwealth's appeal on
the entire record. Cf. Commonwealth v. McLaughlin, 364 Mass.
211, 229, 303 N.E.2d 338 (1973) (rulings on motion for new trial reached in
judge's discretion may be argued on appeal).
Because the motion judge did reconsider his decision, we need not decide
whether he was obliged to reconsider his dismissal of the indictments.
The judge
first noted that the prosecutor had disclosed that police officers involved in
this case had given false testimony before the motion judge and in the District
Court when they testified about John. He
noted that the prosecutor's disclosures
[405 Mass. 577] called into
question John's existence. "[The
prosecutor's] revelations lead to the inescapable conclusion that the officers
fabricated all information allegedly provided by John, including the
exculpatory information."
(FN5) The judge noted that Luna,
Amate, and Schroeder knew of X and did not disclose X's existence. The judge further commented that, although
the prosecutor knew of X in December, 1988, had some suggestion of Y's
existence by February 13, 1989, and in January and February had "beg[u]n
to become convinced" either that the police were deliberately refusing to
identify John or that John did not exist, nevertheless on February 16 the
prosecutor filed proposed findings of fact urging the judge to find that the
failure to locate John was "not a bad faith failure." The judge observed that, before his February
22 decision to dismiss the indictments, the prosecutor did not inform the judge
or defense counsel of recent developments or of any belief that the officers
had committed perjury.
The judge
recounted the discovery of Y and the prosecutor's argument that, although Y had
never been in the apartment, Y was the real informant. He also recounted the discovery of Z.
The judge
stated that he had ordered the prosecutor and the three police officers to file
affidavits by noon on March 3. There is,
however, nothing in any order or elsewhere in the record to show that Luna,
Amate, and Schroeder, who were placed on paid administrative leave on February 27, were
ordered to file affidavits by March 3. (FN6)
The judge
made findings and reached conclusions about the prosecutor's conduct. Although it is not clear whether misconduct
of the prosecutor himself was a basis for the judge's refusal to reinstate the
indictments (there was no such suggestion[405
Mass. 578] in the judge's initial decision to dismiss
the indictments), the judge's negative criticism of the prosecutor's conduct
must have had some purpose and may have provided some justification in his mind
for the decision not to reinstate the indictments.
[1] We
conclude that the judge's criticisms of the prosecutor, even if warranted on
the record, provide no basis for dismissal of the indictments. For example, if the prosecutor's delay until
January, 1989, in the disclosure of X's existence (rather than disclosing X during
the early December hearing on the defendant's motion to dismiss) was error,
there is no basis for concluding that the defendant's rights have been
prejudiced or that the error was egregious.
The case can be tried now using X's testimony. The defendant has not shown how he will be
adversely affected by any wrongful delay in the disclosure of X. No one suggests that X provided information
on which the application for the warrant was based. The knowledge that X existed and of what X
said X did does not suggest in any way that John did or did not exist. Moreover, X provides the defendant with
exculpatory evidence.
We cannot
fairly find fault with the prosecutor's decision to request, when he did, that
the judge find that the search for John was not a bad faith failure. The prosecutor's ambiguous statement in his
March 3 affidavit that in October, 1988, he "began to become
convinced" either that the police were refusing to produce John because he
would contradict them or that John did not exist is not a fair basis for
criticizing the prosecutor for having maintained his position on the
defendant's motion to dismiss. Although
an inkling of doubt about the correctness of one's position can be the first
step toward becoming convinced that one is wrong, such suspicion does not
require that one abandon his position.
Trial counsel, even prosecutors, are not required to be free from doubt
about where the truth lies. When the
prosecutor argued against the defendant's motion to dismiss the indictments, he
was entitled to argue the good faith conduct of the police in seeking to find
John. (FN7)
[405 Mass. 579] Of course, Luna's house of cards built in support of his
application for the search warrant was beginning to collapse. The discovery of X, Y, and Z went a long way
toward that collapse. In retrospect, it
seems clear that the prosecutor should have asked the judge to delay any
decision on the motion to dismiss the indictments while the prosecutor
investigated the matter further. It also
seems clear that, if the indictments had not been dismissed, Luna, Amate, and
Schroeder would not have come forward to confess error as they did. The circumstances warrant no pride in the
handling of this matter by the police.
The question, however, is whether the indictments should have been
dismissed.
The judge
recognized the alternative principles requiring the dismissal of an indictment
that we set forth in Commonwealth v.
Cronk, 396 Mass. 194, 198‑199, 484 N.E.2d 1330 (1985). An indictment must be dismissed for
prosecutorial misconduct upon a showing of irremediable harm to the defendant's
opportunity to obtain a fair trial. Id. at 198, 484 N.E.2d 1330.
Commonwealth v. Lam Hue To, 391 Mass. 301, 314, 461 N.E.2d 776
(1984). "Under the alternative
principle, prosecutorial misconduct that is egregious, deliberate, and
intentional, or that results in a violation of constitutional rights may give
rise to presumptive prejudice. In such
instances prophylactic considerations may assume paramount importance and the 'drastic
remedy' of dismissal of charges may become an appropriate remedy.
Commonwealth v. Light, 394 Mass.
[112, 114, 474 N.E.2d 1074 (1985) ], citing 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).
Commonwealth v. Manning, 373 Mass. 438, 443‑444 [367 N.E.2d
635] (1977)." Commonwealth v. Cronk, supra 396 Mass. at
198‑199, 484 N.E.2d 1330.
[405 Mass. 580] The judge concluded that "the conduct of the prosecution
team fell below required constitutional and ethical standards." He thought little of the credibility of Y
and Z, a conclusion reasonably reached on the basis of their deposition
testimony. He thought the affidavits of
the three officers were also suspect.
(FN8) The judge rightly
attributed to the prosecutor the police officers' misconduct in the prosecution
of the defendant. Commonwealth v. Fontaine, 402 Mass. 491,
496‑497 n. 9, 524 N.E.2d 75 (1988).
He then concluded that: "The
prosecution team has by its own admissions engaged in the falsification of
police reports on many occasions, including the falsification of the affidavit
in support of the search warrant for 102‑104 Bellevue Street, intentional
disregard for established police procedures and perjury before the District
Court and the Superior Court.
Additionally, in the quest for the
non‑existent John, public funds were needlessly expended. Finally, members of the prosecution team have
intentionally used the court as a means to cover‑up its own wrong doing
which was not revealed until this court's dismissal of the above
indictments" (emphasis supplied).
(FN9) The judge concluded that
dismissal of the indictments was required because the pattern of misconduct from
the tragic death of Detective Griffiths to the present had been
"pervasive, egregious, deliberate and intentional." He said that he could not assure that the
"new" evidence was reliable or that the defendant could receive a
fair trial.
Postargument remand. On March 30, 1989, a single justice of this
court stayed the effectiveness of the order dismissing the indictments, and, on
April 6, 1989, the Commonwealth's appeal was argued before the full court. The Commonwealth did not challenge the
judge's reasoning in support of the initial
[405 Mass. 581] order dismissing
the indictments for failure to produce John but rather argued that, in light of
disclosures since the February 22 order of dismissal, the dismissal was
error. On April 12, 1989, the court
remanded the case for prompt further findings as to whether the prosecutorial misconduct
identified by the judge "prejudiced the defendant's right to a fair
trial." (FN10)
The judge
promptly filed supplementary findings.
He briefly recited the background of the proceedings leading to his
allowance of the motion to dismiss. He said
that an evidentiary hearing on the Commonwealth's petition for a rehearing
would have been futile. He reiterated
his earlier finding that Y and Z were not a compilation of John. He found that John still exists and has been
deliberately withheld. He ruled that the
affidavits filed by the police officers lacked any indicia of reliability. He said that the Commonwealth had not
satisfactorily explained (a) the source of the description of Stevie or (b) the
source of the information in the search warrant that the door to the apartment
at 102‑104 Bellevue Street had been rebuilt. According to the judge, only a person who had
been inside the apartment would know that the door had been rebuilt and X, Y,
Z, and Luna all disclaimed having been inside the apartment.
As to
prejudice, the judge reiterated his view that the non‑production of John
would prejudice the defendant. He found
prejudice in the possibility of further prosecutorial misconduct [405 Mass. 582] and in his inability to assure that the prosecutor would act as a
safeguard in the prosecution of these indictments so as not to taint the
determination of guilt or innocence. He
concluded that there was no alternative remedy to dismissal and that the
failure to produce John and "the serious and calculated misconduct which
is 'inextricably interwoven' with the facts and prosecution of this case, leads
this court to conclude that the defendant cannot receive a fair trial."
The nonexistence of John. Earlier in this opinion we said that we
disagree with the judge's finding that John exists and continues to be
withheld. We now explain why that
finding is clearly erroneous on the record in this case. Luna's testimony that John provided
information leading to applications for search warrants in almost all parts of
the city portrays an informant with a remarkable (perhaps one should say
incredible) range of knowledge. The
careful investigatory work of defense counsel uncovered thirty‑one
applications for search warrants in various parts of the city in which Luna
relied on John during just a ten‑month period. (FN11)
To perpetuate his lie, Luna apparently felt compelled to describe John
as the peripatetic savant of illicit drug activity in the city of Boston the
applications portrayed. One reasonable
implication from Luna's testimony is that Luna made up John as a means of
obtaining search warrants in ostensible compliance with constitutional
requirements concerning the issuance of search warrants.
Whether
this inference appropriately should have been drawn from Luna's testimony is
not particularly important in light of the three officers' sworn repudiation of
the existence of John and of various other facts previously stated under
oath. The officers' affidavits were
produced in circumstances strongly supporting their accuracy. Each officer, represented by counsel, made a
sworn statement admitting to perjury after having been advised by counsel of
the consequences of his action. In [405 Mass. 583] admitting to perjury, each officer was virtually assuring the end
of his career as a Boston police officer and was providing a basis for serious
criminal charges against himself, including a charge of criminal contempt of
court. In these circumstances, the
incentive to lie at that time about the nonexistence of John as a source of
information was virtually nonexistent.
There is no apparent reason why any of these officers would untruthfully
deny John's existence and by doing so seriously incriminate himself, destroy his career, and damage his
reputation.
We do not
know for certain, of course, that John does not exist. We do say, however, that on this record a
finding that John does exist was clearly erroneous. We, therefore, accept the judge's initial
determination, made when he first denied the motion to reconsider dismissal of
the indictments, that John is "non‑existent."
Prejudice. We had hoped that on remand the judge would
clarify the question whether there would be prejudice to the defendant if John
did not exist and the case were tried.
In light of his supplemental findings, we construe the judge's statement
that he cannot assure that the defendant can receive a fair trial to be based
not on any demonstrated, irremediable prejudice (assuming John to be
nonexistent) but rather on the premise that the egregious prosecutorial
misconduct itself requires dismissal. We
shall treat the issue of egregious misconduct later. But first we must consider the question of
prejudice further.
In his
supplemental findings, the judge refers to certain information set forth in
Luna's application for a search warrant that he believed remained
unexplained. The judge says that the
source of the information about Stevie and the source of the information about
the "rebuilt" door has not been disclosed. As to the suggestion that only a person who
had been in the apartment would know the door had been rebuilt, we agree with
the Commonwealth that, based on a photograph of the outside of the door that is
in the record, a person on the outside of the door that is in the record, a
person on the outside of the door could tell that the door frame had been
rebuilt.
There
remains the possibility that Luna, or one of the other police officers,
received information from some source that has not yet been disclosed
concerning the rebuilt door and concerning[405
Mass. 584] an Hispanic male called Stevie who was seen
selling drugs in the apartment on the two days before Griffiths's death. See
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The defendant is entitled to have a voir dire
hearing on these questions before trial in order to establish the present
position of Luna and Amate concerning the origin of the information about
Stevie and the door. If the defendant
wishes, he may introduce at trial such portions of Luna's application for the
search warrant as he wishes, and the Commonwealth will be barred from rebutting
any portion of the application so admitted.
The defendant shall be entitled to bring out as much of the perfidious
conduct of the policy in this matter as he wishes, even though all or some of
that misconduct may not be strictly material to the trial of the charges
against the defendant. The trial judge
may devise other means of protecting the defendant's rights in the face of the
police misconduct.
We are
unable to conclude that, in these circumstances, the defendant cannot receive a
fair trial. Perhaps when the trial is
over, if there are convictions, the possibility of unfairness will be
demonstrable. X's testimony concerning
identifiable men, other than the defendant, being on the third floor just
before Griffiths's death and the unwillingness of Luna, Amate, and perhaps
others to disclose X's existence will present a strong basis for an argument
that no finding beyond a reasonable doubt is warranted that the defendant,
alone in the apartment, shot Griffiths.
Information, if it exists, that an Hispanic male named Stevie was
actually seen in the apartment on the two prior days, although relevant, seems
substantially less important than the testimony of X and the delay in X's
disclosure. The defendant has not yet
demonstrated that his right to a fair trial has been irremediably prejudiced
because exculpatory evidence has been withheld, thus warranting dismissal of
the indictments.
As to the
prospect of future prosecutorial misconduct (a point that concerned the motion
judge), we decline to assume that the subsequent prosecution of this case will
be tainted by new misconduct.
[405 Mass. 585] [2] Egregious misconduct.
The police misconduct in this case does not warrant the dismissal of the
serious charges, including murder, pending against the defendant. That misconduct deserves direct censure,
condemnation, and punishment. At this
time at least, however, society need not punish itself by dismissing the
charges.
Perjurious
police conduct is reprehensible. Luna's
knowingly false application for the search warrant completely discredits a
fundamental safeguard on which constitutional protection against unreasonable
searches and seizures is based. Our
system tests the existence of probable cause to conduct a search based on
information from an unnamed informant by considering the information that a
police officer gave under oath to the magistrate who issued the search warrant.
The validity of the process depends on
belief in the integrity of affiant police officers. For a defendant to be entitled to go behind
the police officer's application to show that in fact there was no probable
cause to justify issuance of the warrant, the defendant must make "a
substantial preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included by the
affiant in the warrant affidavit." Franks v. Delaware, 438 U.S. 154, 155, 98
S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978).
See Commonwealth v. Nine Hundred
& Ninety‑two Dollars, 383 Mass. 764, 767, 422 N.E.2d 767
(1981). A substantial showing of such a
false statement is not easily made. Lies
about the existence of an undisclosed informant and his reliability are easy to
tell yet most difficult to uncover.
There is
no constitutional requirement that the existence of probable cause to issue a
warrant be tested, as has been the practice, solely on the facts contained in
an affidavit in support of its issuance.
Where a lack of integrity has been shown in a portion of the drug
control unit of a police department, judicial confidence is shaken in the use
of warrant applications alone to test probable cause. This case shows that some police officers
will lie and will lie further in an effort to cover up the initial lie. Where established police procedures for the
internal disclosure of informants have been disregarded, judicial confidence is
further shaken. It is vital that the
demonstrated omissions [405 Mass.
586] be corrected and that
supervisory authorities insist on the protection of the constitutional and
other rights of all persons.
This is
not at all a case of an overzealous defense attorney relying on technicalities
to exonerate a client. This is a case in
which defense counsel has carried out his responsibilities as he should and, in
doing so, has uncovered contemptible and disgusting misconduct by police
officers in blatant violation of their sworn duties. Their criminal and reprehensible behavior
intrudes on the constitutional rights of us all by undermining the integrity of
our system of constitutional protections and by making a mockery of their oaths
to tell the truth. (FN12)
Although
we condemn the police misconduct in this case in the strongest terms and would
have required the suppression of any evidence of drug law violations seized
during a search pursuant to the search warrant, the charges against the
defendant need not be dismissed because of egregious police misconduct. We have sometimes remarked that outrageous
police conduct, not shown to be prejudicial to a fair trial, may require the
dismissal of charges, but we have never dismissed charges in such a
circumstance (although we have upheld the suppression of evidence in such
situations). See Commonwealth v. Fontaine, 402 Mass. 491, 498, 524 N.E.2d 75
(1988);
Commonwealth v. King, 400 Mass. 283, 290, 508 N.E.2d 1382 (1987);
Commonwealth v. Light, 394 Mass. 112, 114‑115, 474 N.E.2d 1074
(1985);
Commonwealth v. Cinelli, 389 Mass. 197, 207‑211, 449 N.E.2d
1207, cert. denied, 464 U.S. 860, 104 S.Ct. 186, 78 L.Ed.2d 165 (1983). Cf.
Commonwealth v. Cronk, 396 Mass. 194, 199, 484 N.E.2d
1330 (1985) (prosecutorial misconduct).
(FN13)
[405 Mass. 587] The only reason to dismiss criminal charges because of
nonprejudicial but egregious police misconduct would be to create a climate
adverse to repetition of that misconduct that would not otherwise exist. In this case, the police misconduct was
directed initially at arresting the person or persons involved in a drug
vending operation on the third floor of 102‑104 Bellevue Street. If Luna, Amate, and Schroeder had made a
clean breast of their misconduct immediately after Griffiths was shot, there
certainly would have been no conduct so egregious as to require dismissal of
charges against the defendant.
The
officers' attempts to cover up their misconduct were not designed to aid in the
conviction of the defendant of murder and other crimes and in fact may have
seriously hampered, rather than aided, proof of the defendant's guilt. The police perjury and cover‑up were
not entwined in proof of the charges against the defendant but rather concerned
a largely separate matter (illicit drug dealing) that, to be sure, may have
some connection with proof of the defendant's guilt. These acts do not require dismissal of the
charges for prophylactic reasons.
Repetition
of such conduct by others will be sufficiently discouraged without dismissal of
the charges. The officers' police careers
are over, their reputations are greatly damaged, and they face serious criminal
charges. Knowledge of these adverse
consequences to the police officers should be a deterrent to similar future
misconduct. (FN14) A properly constructed and diligently
supervised police department procedure for monitoring and controlling the
content of applications for search warrants based on information from
undisclosed informants should also provide a deterrent to misconduct, provided
it is endorsed by responsible superiors and contains provisions for discipline [405 Mass. 588] when prescribed procedures are not followed. It is now apparent, moreover, that judges can
and will dismiss even serious indictments if the police do not come forward
with information that must be disclosed.
The likelihood that misconduct of the type involved in this case will
not be uncovered, unless the dismissal of charges is assured when one is caught
in such wrongdoing, is not so great as to require dismissal of the indictments
in this case in order to encourage earlier disclosure of wrongdoing in future
cases. "In the absence of a
demonstrated need for deterrence, a prophylactic remedy is inappropriate."
Commonwealth v. King, 400 Mass. 283, 292, 508 N.E.2d 1382 (1987).
In order
to express its outrage at the reprehensible police conduct in this case,
society need not punish itself by freeing a man who may be guilty of murder in
the first degree and other serious crimes.
If the defendant can receive a fair trial in spite of the police
misconduct, a matter that cannot be determined with total confidence at this
time, that misconduct provides no reason to dismiss the charges in this case.
The order
dismissing the indictments is vacated, and the case is remanded to the Superior
Court for trial. (FN15)
So ordered.
LIACOS,
Chief Justice (dissenting, with whom ABRAMS, Justice, joins).
In a case
riddled with deceit and fraud by law enforcement authorities, the court,
ignoring the realities of the meaning of a fair trial, contents itself by
reciting indignant, but toothless rhetoric.
The court describes the conduct of those who would put the defendant on
trial and who hold the cards against him as "perfidious,"
"contemptible," "disgusting," "criminal," and
"in blatant violation of their sworn duties," yet denies the
defendant an effective remedy. Without
the ultimate sanction of dismissal with prejudice, this court fails "to
discourage government agents from such deliberate and insidious attempts [405 Mass. 589] to subvert the defendant's right to a fair trial."
Commonwealth v. Jackson, 391 Mass. 749, 754, 464 N.E.2d 946 (1984).
The
prosecutorial team's "egregious, deliberate, and intentional"
misconduct far exceeds that required to establish presumptive prejudice.
Commonwealth v. Cronk, 396 Mass. 194, 199, 484 N.E.2d 1330
(1985). "[T]he officers' misconduct
was so pervasive as to preclude any confident assumption that proceedings at
... trial would be free of the taint." Commonwealth v. Manning, 373 Mass. 438,
444, 367 N.E.2d 635 (1977). Sadly, these
proceedings have been poisoned beyond cure solely by the agents of the
Commonwealth. Truth and falsehood have
become so obscured in this case, at the instigation of the prosecutorial team,
that it is impossible to believe that the defendant will be able to obtain a
fair trial. (FN1) See
Commonwealth v. Lam Hue To, 391 Mass.
[405 Mass. 590] 301, 312‑313,
461 N.E.2d 776 (1984). The court should
not turn a blind eye to the serious degradation of the truth‑seeking
process, in the hopes that somehow a jury will be able to sort out the whole
mess. (FN2) I "see no place in due process law for
positioning the jury to weed out the seeds of untruth planted by the
government." United States v. Waterman, 732 F.2d
1527, 1532 (8th Cir.1984), cert. denied, 471 U.S. 1065, 105 S.Ct. 2138, 85
L.Ed.2d 496 (1985).
The court
today, in its newfound role as fact finder, substitutes its view of events for
that of the judge, riding roughshod over accepted standards of appellate
review. There is considerable evidence
to support the judge's finding of fact that there is an undisclosed exculpatory
witness. The police have shown that they
will do everything within their power to ensure the conviction of the defendant. They failed for months to disclose the
existence of
informant X. The officers have never
offered any explanation for this delay, nor would revelation of X have
contradicted any previous sworn statements.
In fact, despite the judge's disclosure order, the police officers never
voluntarily revealed the information.
Even after dismissal, when the police supposedly "came clean,"
they presented two alleged informants‑‑whom they had purportedly
been withholding for almost a year‑‑whose testimony the motion
judge found to be unworthy of belief.
Yet now the court would have us believe that witnesses who have
repeatedly misled the court finally are telling the truth, and that they no
longer have an incentive to lie. This is
sheer nonsense. The very fact that the
police officers have already put themselves at personal risk increases their
incentive to say anything that would get the defendant convicted. They now have every reason to conceal an
exculpatory witness: revealing him now
would make their misguided sacrifice of the truth and the Constitution all for
naught.
[405 Mass. 591] At any rate, these considerations regarding credibility should
all properly remain within the province of the lower court. See
Commonwealth v. Hine, 393 Mass. 564, 568, 471 N.E.2d 1342 (1984). The judge below saw these police officers
testify in prior proceedings. He, not
this court, should determine whether their belated recantation is to be
believed.
Commonwealth v. Carballo, 9 Mass.App.Ct. 57, 60, 399 N.E.2d 34,S.C., 381 Mass. 227 (1980).
Commonwealth v. Grace, 397 Mass. 303, 310‑311, 491 N.E.2d 246
(1986). The court today boldly
substitutes its own judgment as to credibility for that of the judge, claiming
that it is incredible that the informant John could have provided information
which led to applications for over thirty search warrants. (FN3)
In
addition, the court takes great pains to reconstruct a scenario in which the
informant John did not necessarily exist.
For instance, the court makes much of the fact that a person outside the
apartment could tell that the door had been rebuilt. But this type of analysis misconstrues the
role of appellate courts. Although we
may have found the facts differently, we may not substitute our judgment for
that of the motion judge. "We have
often stated that '[t]he determination of the weight and credibility of the
testimony is the function and responsibility of the judge who saw and heard the
witnesses, and not of this court.' " Commonwealth v. Hine, supra 393 Mass. at
568, 471 N.E.2d 1342. Commonwealth v. Moon, 380 Mass. 751, 756,
405 N.E.2d 947 (1980). The judge had
before him sufficient evidence to warrant a finding that John exists. (FN4)
The court,
in its rush to send the defendant to trial, brushes aside well‑established
principles against relitigation of facts
[405 Mass. 592] after final
judgments. (FN5) This court has said, with regard to
defendants in criminal cases, "[t]he defendant may not, after losing on
one theory, retry his case on an alternate theory on which admissible, highly
relevant evidence was available to him at the time of the trial."
Commonwealth v. Freiberg, 405 Mass. at 282, 288, 540 N.E.2d 1289 (1989).
Apparently, a different standard applies to the Commonwealth. This is not a rule of law; it is a sleight of hand, and a slight to the
defendant's right to a fair trial.
This case
has undermined the public's faith in the administration of justice in this
Commonwealth. The court today has done
nothing to restore confidence in our now sullied system of justice. (FN6)
The saddest aspect of this entire sordid saga of police misconduct may
well be that the death of a police officer will go unavenged. Let it be known that the cause of such an
event is not the court but the police themselves.
ABRAMS,
Justice (dissenting, with whom LIACOS, Chief Justice, joins).
The court
today substitutes rhetoric for precedent in order to reinstate the indictments
against Lewin. We have said that,
"[a] trial judge ... must rest a dismissal of criminal charges for failure
of the prosecution to comply with discovery orders in a timely manner on
findings that the delayed disclosure was due to deliberate and egregious action
by the prosecutor or unintentional
conduct resulting in irremediable harm to the defendant" (emphasis added).
Commonwealth v. Cronk, 396 [405
Mass. 593] Mass. 194, 199, 484
N.E.2d 1330 (1985). The court now alters
this standard by requiring not only deliberate and egregious conduct to justify
dismissal of criminal indictments but also irremediable harm to the defendant. Adherence to the principles of stare decisis
provides certainty in the law. The only
thing now certain is that no matter how egregious the government conduct,
courts of the Commonwealth will do no more than give lip service to protect
citizens from unlawful, illegal, and intentional prosecutorial misconduct.
To reach
its result, the court finds facts, not the usual function of an appellate
court. On remand, the judge found that
"John exists and has deliberately been withheld." It is a "well‑established principle
of appellate review that subsidiary findings of fact by the judge below will be
accepted absent clear error." Commonwealth v. Hine, 393 Mass. 564, 568,
471 N.E.2d 1342 (1984). The court
purports to discover clear error in the judge's finding that John exists. (FN1)
The court is wrong: there is
ample evidence to warrant a determination that John exists. The police officers all testified (before
their attempted recantation) that John exists.
As long as the judge found the initial testimony more credible than the
attempted recantation, he is warranted in concluding that John exists. The judge saw the witnesses testify, and the
members of this court did not. The judge
found that the officers' initial testimony was more credible than their abandonment
of the testimony, and that John exists.
Until today, we always have "accept[ed] the judge's resolution of
conflicting testimony." Commonwealth v. Sanchez, 403 Mass. 640,
644 n. 3, 531 N.E.2d 1256 (1988).
"We have often stated that '[t]he determination of the weight [405 Mass. 594] and credibility of the testimony is the function and
responsibility of the judge who saw and heard the witnesses, and not of this
court.' " Commonwealth v. Hine, supra, quoting Commonwealth v. Moon, 380 Mass. 751,
756, 405 N.E.2d 947 (1980). See Commonwealth v. Cronk, supra 396 Mass.
at 199, 484 N.E.2d 1330. Although this
is an elementary principle of judicial review, the court fails to follow it.
The court reverses the judge's credibility
determinations by making its own determination of credibility. To bolster its conclusion, the court states
that the officers have no incentive to continue to lie. This is not established. Nothing in the court's opinion suggests that
the Commonwealthmust prosecute the
"perjurious" officers. Nothing
in the court's opinion suggests that the defendant's conviction might be
contingent on prosecution of the officers and that failure to prosecute the
officers may constitute presumptive prejudice to the defendant. At present, therefore, the police officers
have every incentive to continue to lie.
They may hope not to be prosecuted or to be treated more leniently if
they provide evidence at trial which aids the Commonwealth. The court is naive to assume otherwise.
Assuming
for the moment that the court is warranted in finding that the judge's
conclusion that John exists is clearly erroneous, the court still exceeds the
scope of proper appellate review.
(FN2) Even assuming that there is
no evidence to warrant a finding that John exists, that does not provide the
court with any proof that John does not exist. Commonwealth v. Michaud,
389 Mass. 491, 498, 451 N.E.2d 396 (1983). Commonwealth v. Eramo, 377 Mass. 912, 913
n. 1, 387 N.E.2d 558 (1979). Commonwealth v. Marino, 343 Mass. 725,
728, 180 N.E.2d 662 (1962) (disbelief of evidence is not sufficient [405 Mass. 595] to establish opposite conclusion). Thus, the court's conclusion that John does
not exist is flawed. Further, the
officers have not been ordered to come forward with the witnesses who provided
the detailed composite of Stevie. The
failure to establish how the description was obtained raises serious doubt
about whether the Commonwealth has turned over to the defendant all its exculpatory
evidence. The police misconduct
therefore has clouded this case so thoroughly "as to preclude any
confident assumption that proceedings at a ... trial would be free of the
taint." Commonwealth v. Lam Hue To, 391 Mass.
301, 313, 461 N.E.2d 776 (1984), quoting
Commonwealth v. Manning, 373 Mass. 438, 444, 367 N.E.2d 635 (1977). (FN3)
The
behavior of the police officers was intolerably exploitive of Lewin, who, being
held in jail in lieu of bail, attempted to prepare for his impending
trial. (FN4) The officers lied about John in connection
with the drug charges, and continued to lie about him as John became a focal
point in the murder case. Because of the
officers' lies, the defendant languished in jail while court proceedings
continued with what the court has characterized as "perfidious"
police conduct. The defendant's attorney
has had continuously to revise his trial strategy in the face of new
revelations from the police. The
Commonwealth claimed that there was an informant it called John, and the
defendant was expected to try his case in response to this theory. Now the court rules that the Commonwealth
need not adhere to its initial claim but may try its case under another,
different strategy. The defendant is
left with a Hobson's choice‑‑go to trial without adequate
preparation or remain in jail preparing
[405 Mass. 596] his
defense. Surely this alone may
constitute "irremediable harm to . the defendant's opportunity to obtain a
fair trial," Commonwealth v. Cronk,
supra 396 Mass. at 198, 484 N.E.2d 1330.
The
officers admitted their lies and their perjury only when the judge dismissed
the indictments. At that point, police
came forward with Y and Z, whom the judge found incredible and whom the court
seems to agree were incredible. Under
today's decision, members of the police force may continue lying until
indictments are dismissed, and then be entitled to reinstatement as soon as
they come forward with any type of explanation.
Essentially, the court has placed the police in the enviable situation
of "heads I win, tails you lose."
The court's holding certainly provides no disincentive (other than the
usual fears of the penalties of perjury, which apparently meant little in this
case at least) for the police officers to lie to bolster their position
regarding the indictments. (FN5)
Finally,
assuming for the sake of argument, that the court is justified in its new found
power to find facts, and we may be confident that John does not exist, in my
view, the judge acted correctly in dismissing the indictments as a prophylactic
measure to deter serious police misconduct.
In this case, "[w]e are confronted ... not with the proverbial
constable's blunder or even the good faith overzealousness in the pursuit of
legitimate law enforcement aims." Commonwealth v. Manning, supra 373 Mass.
at 443, 367 N.E.2d 635. Rather, this is
a case of "egregious, deliberate, [405
Mass. 597] and intentional"
police misconduct. Commonwealth v. Cronk, supra 396 Mass. at
198, 484 N.E.2d 1330. The court's tepid
response leaves me with great doubt "that such conduct will not be
tolerated in our criminal justice system." Commonwealth v. Manning, supra
373 Mass. at 445, 367 N.E.2d 635. The
court's decision not only tolerates but encourages illegality on the part of
the police and discourages judges in the pursuit of truth and justice. I continue to adhere to my view that, in
circumstances in which the misconduct is so "outrageous, egregious, and
calculated.... I would dismiss the
indictments against the defendant without a showing of prejudice." Commonwealth v. King, 400 Mass. 283, 294‑295,
508 N.E.2d 1382 (1987) (Abrams, J., dissenting). See Commonwealth v. Light, 394 Mass. 112,
115, 474 N.E.2d 1074 (1985) (Liacos, J., dissenting).
The police
officers have done their very best to hide the truth from the defendant and the
courts. The court today has done nothing
to aid the discovery of the truth.
"[W]hen the truth is buried underground, it grows, it chokes, it
gathers such an explosive force that on the day when it bursts out, it blows
everything up with it. We shall soon see
whether we have not laid the mines for a most far‑reaching disaster of
the near future." Zola,
J'Accuse! (1898), reprinted in The Law
as Literature (London ed. 1960). I
dissent.
(FN1.) The promises included dropping charges
related to this case, protection and relocation for McConnell, for his wife
Shirley, and for her brother, George Johnson, and assistance for some in
connection with unrelated criminal matters.
None of the witnesses was given immunity from prosecution in exchange
for their testimony against the defendant, a conclusion that the Superior Court
motion judge erroneously reached in a subsequent aspect of this
proceeding. Each of the persons found in
the first‑floor apartment may still be charged with Griffiths's
murder. The implication is, however,
that they will not be charged if they truthfully cooperate with the
prosecution.
(FN2.)
The record contains no explanation why information about this purchase was not
furnished to the defendant when the prosecutor disclosed the purchases on
February 15 and 16, in response to the judge's order for disclosure of all drug
purchases at 102‑104 Bellevue Street.
(FN3.)
On March 1, 1989, on direction of the judge, defense counsel took the
deposition of X in the presence of the prosecutor. During this deposition X testified to who the
three men were, based on having seen pictures of them that had been published
in a newspaper following Griffiths's death.
X's
deposition testimony was generally consistent with, but in greater detail than,
X's earlier statement. The man who
admitted the three men into the third‑floor apartment spoke both English
and Spanish. X told Luna that Luna had
sent X to the wrong door on the third floor.
Apparently because of this information, the police officers sought to
execute the search warrant at the third‑floor apartment at 104, rather
than, at 102 Bellevue Street.
In
X's deposition, X was unsure of the time X had made the purchase of cocaine for
Luna on February 17. X's testimony
placed the purchase later than it appears to have occurred based on evidence as
to the time of the shooting.
(FN4.)
Luna was out of the country at the time Y was first uncovered and was not
present at the February 27 hearing.
(FN5.) In supplemental findings issued on the
request of this court, the judge disclaims this language as an expression of
his conclusion that John never existed but rather says it refers to the
Commonwealth's arguments and contentions.
(FN6.) The judge's inference that, contrary to
his order, the three officers waited until after the depositions of X, Y, and Z
had been taken before filing affidavits consistent with that deposition
testimony is not warranted on this record.
There is no showing that the officers saw or knew of the deposition
testimony of X, Y, or Z. The deposition
testimony was impounded.
(FN7.) As we have said, X's testimony
concerning the door to which Luna sent him on February 17, 1988, which was the
wrong door on the third floor of 102‑104 Bellevue Street, strongly
indicates that Luna did not make any purchase of drugs on the third floor on
February 15 and 16, 1988. Disclosure of
that fact would have made Luna a less credible witness, but that disclosure
would have had no bearing on the existence or nonexistence of John. At the time he proposed findings of fact, the
prosecutor did not know of the existence of evidence that John did not exist
and that, therefore, the search for John was a sham. He was not required to abandon his
position. See S.J.C. Rule 3:07, DR 7‑103(B),
as appearing in 382 Mass. 784 (1982) ("A public prosecutor ... shall make
timely disclosure ... of the existence of evidence, known to [him], that tends
to negate the guilt of the accused....");
S.J.C. Rule 3:08, PF 7(a), as appearing in 382 Mass. 797 (1981).
(FN8.) As we shall explain shortly, the
affidavits are not seriously suspect on the record before us in so far as they
repudiate the existence of John.
(FN9.) We shall return to the judge's, we
think correct, conclusion on this record that John did not exist. Only if he did not exist would public funds
have been "needlessly expended" in looking for John. In his supplemental findings, the judge did
not comment on his earlier reference to the "non‑existent
John," although we noted that statement in our postargument order of
remand.
(FN10.) We also said in the order: "This court has not concluded that, in
the circumstances, the indictments could properly be dismissed only if the
defendant, were he now to be tried, would be irremediably prejudiced by the
Commonwealth's misconduct. We believe,
however, that a decision in this appeal may be aided by further findings by the
motion judge on that question.... If, as
the judge has indicated, John (or at least his exculpatory evidence) never
existed, the prejudice that supported the February 22, 1989, order may not
exist.
"We
seek specific findings as to how, if at all, the defendant's right to a fair
trial has been irremediably prejudiced by the Commonwealth's misconduct. Such considerations would include whether
there is any way, short of dismissal, by which the defendant's right to a fair
trial can be preserved and whether the question of irremediable prejudice can
be answered with reasonable certainty at this time (or whether it is premature
to reach any conclusion on that question)."
(FN11.) At the hearing on the motion to
dismiss, after the defendant had brought out Luna's extensive use of John as an
informant, the judge inquired of defense counsel, "Are you suggesting that
John never existed?" Defense
counsel answered, "No."
(FN12.) Some centralized consideration by
administrative justices or the chief administrative justice of the scope of
police misconduct in seeking search warrants and the adequacy of police
procedures for guarding against such misconduct may be needed. Judges must zealously guard themselves
against being used by police officers who lie and who violate constitutional
rights in order to achieve what they improperly perceive as the greater end of
convicting other wrongdoers.
(FN13.) In
Commonwealth v. Manning, 373 Mass. 438, 444, 367 N.E.2d 635 (1977), where
law enforcement officers willfully interfered with the defendant's right to
counsel, we ordered the indictments dismissed because "the defendant had
in fact been prejudiced to some extent." Id. at 443, 367 N.E.2d
635. The prejudice, however, was found
not to be "serious." The Manning case may stand for the
application of a strict standard in cases where intentional, egregious conduct
threatens a defendant's constitutional right to counsel. See
Commonwealth v. Hine, 393 Mass. 564, 571‑572, 471 N.E.2d 1342
(1984). That right is not at issue in
this case.
(FN14.)
This case is unlike one involving an illegal search and seizure in which the
threat of a claim by the accused criminal defendant against the wrongdoer
officer has little potential for deterrence and exclusion of the illegally
seized evidence has been adopted as a prophylactic solution to the police
wrongdoing.
(FN15.) The motion judge has acknowledged
that, if the indictments are reinstated, he will not be the trial judge.
(FN1.) I take exception to the court's
willingness to exonerate the prosecutor by characterizing his strong suspicions
of wrongdoing as "an inkling of doubt about the correctness of [his]
position." Ante at 282. While the prosecutor did not create the
initial problems, as early as October, 1988, after "an intensive
unsuccessful search for the informant [he] began to become convinced that
either the informant did not exist or that the police were choosing not to
produce him because he would contradict them." The prosecutor's suspicions were such that
in December, 1988, January, and February, 1989, he "implor[ed] each police
officer to call [him] anonymously and give [him] the answer either he does not
exist or he does and this is his identity." Said the prosecutor in his affidavit: "Throughout this same December, 1988, to
February, 1989 period, I continued over and over to try to impress Sergeant
Amate and Detective Luna that if my suspicions were accurate they should tell
the truth." All the while, the
prosecutor mentioned none of this to the judge.
Indeed, the prosecutor went so far as to submit a proposed finding of
fact which recited that Luna's "failure to find John ... is not a bad
faith failure." Only when the
indictments were dismissed‑‑indeed, on the very day that the
indictments were dismissed‑‑did the prosecutor disclose to the
judge the misconduct committed by the police officers. Such conduct appears to fall below the
standards set by our rules of professional responsibility. See S.J.C. Rule 3:07, DR 7‑103(B), as
appearing in 382 Mass. 784 (1982):
"A public prosecutor ... in criminal litigation shall make timely
disclosure to counsel for the defendant ... of the existence of evidence, known
to the prosecutor ... that tends to negate the guilt of the accused." See S.J.C. Rule 3:08, PF 7, and PF 12, as
appearing in 382 Mass. 797 (1982).
Standard PF 12, provides in part:
"It is unprofessional conduct for a prosecutor [to] ... fail to
seek withdrawal [of false evidence]
promptly upon discovery of its falsity" (emphasis supplied).
(FN2.) Apparently, the court is willing to
perpetrate a fraud on the jury. It will
allow the defendant to introduce the statements about John and Stevie which the
court insists are false, and will bar the Commonwealth from rebutting that
evidence. Under the court's analysis,
the result will give the jury the false impression that John does exist.
(FN3.) I doubt the court would rule in a later
case that an affidavit which relies on an informant who supplied information
which led to thirty warrants is invalid on its face.
(FN4.) The court unfairly mischaracterizes an
isolated statement of the judge, characterizing it as an "initial
determination." The judge
stated: "[I]n the quest for the non‑existent
John, public funds were needlessly expended." The Commonwealth claimed that John did not
exist. Yet the police officers submitted
detailed reports and received overtime compensation during the search for
someone they now represent as nonexistent.
The judge's sarcastic statement regarding this reprehensible activity
was far from a "finding" that John was nonexistent.
(FN5.) The court disregards the procedural
posture of the case, choosing to view the Commonwealth's appeal on the entire
record. For the controversial
proposition that this court may view the case on the whole record and not
solely with respect to the motion for reconsideration the court cites Commonwealth v. McLaughlin, 364 Mass.
211, 229, 303 N.E.2d 338 (1973). That
case is no authority for the court's proposition. McLaughlin stands for the
uncontroversial proposition that a trial judge's rulings of law may be reviewed by appellate courts. That case says nothing about relitigation and
review of factual determinations.
(FN6.) I think it appropriate to note the
careful, thorough, and conscientious treatment with which the judge in this
case handled this particularly difficult and sensitive matter. He has shown courage; we would have done well to follow his
example.
(FN1.)
The court also claims that the judge in his findings of fact before remand
clearly concluded that John does not exist.
The court's implication is that the judge was wrong when he told this
court that he finds that John exists.
The court's disingenuous characterization of the judge's words "the
non‑existent John" in his initial findings as a
"determination" does not bear close scrutiny. In that portion of the opinion, the judge was
sarcastically describing the amount of money spent on a bogus search for a man
named John the Commonwealth now claims
does not exist.
If
it is so clear from the judge's first findings and from the other evidence that
John does not exist, why did the court find it necessary to remand to the
motion judge?
(FN2.) The court does not explicitly announce
a rule for determining whether a defendant has proved prejudice. Nevertheless, the court seems to set an
extremely high standard of proof, and requires a defendant to prove prejudice
with certainty, not only to the motion judge but to the appellate court. It is difficult for a defendant definitively
to prove that exculpatory evidence exists somewhere in the world if this
evidence is not in his possession. Further,
even if he proves this to the satisfaction of the motion judge, under the
court's analysis, the police can merely present a plausible alternate
explanation and thereby avoid the dictates of Commonwealth v. Cronk, supra.
(FN3.) At most, under the court's analysis
there is no evidence one way or another whether John exists. Nevertheless, the court is willing to mislead
the jury (whose role it is to determine the truth) by allowing the defendant to
present unrebutted testimony that John (whom the court concludes does not
exist) exists. Thus, according to the
court, the jury's verdict will not "speak the truth," as the word
"verdict" means.
(FN4.) As the fruitless search for the
"non‑existent" John wasted the assets of the Commonwealth, the
police misconduct also has wasted the assets of the defendant by forcing him to
undergo prolonged court proceedings and to investigate a case which is
different from the Commonwealth's original case.
(FN5.) Although implying that the trial judge
may take certain measures protective of the defendant, the court provides
little in the way of guidance as to how to protect the defendant from an unfair
trial. May the judge preclude the police
officers from testifying? May he
preclude Y and Z from testifying? May
the trial judge disqualify this particular prosecutor? May he preclude arguments from the
Commonwealth on the credibility of its witnesses? May he limit the number of preemptory
challenges available to the Commonwealth?
May he require the Commonwealth to provide a written copy of its final
arguments in advance? May he eliminate
the Commonwealth's final argument? May
the judge permit the defendant to argue last?
May the judge instruct the jury to scrutinize the Commonwealth's
witnesses' testimony with great care?
The court's brief discussion of not allowing the Commonwealth to rebut
evidence of the existence of John is inadequate guidance.
If
the judge takes these actions, may the Commonwealth complain to the full court
each time he rules adversely to the Commonwealth?