COMMONWEALTH v. VALENTIN (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The Commonwealth appeals from the order of the Superior Court dismissing indictments against the defendant. We vacate the order of dismissal, and remand so the judge may make factual findings and explain his reasoning.

Background. In March of 1989, a Hampden County grand jury returned indictments charging the defendant with rape, breaking and entering in the nighttime with the intent to commit a felony, and two counts of assault and battery. A default warrant issued for the defendant on April 10, 1990.¹ Nearly twenty-five years later, in February of 2015, the defendant appeared in the Holyoke Division of the District Court Department on an unrelated criminal matter, and this matter was discovered.²

After resuming prosecution of the defendant, the Commonwealth indicated that it no longer had in its possession the grand jury minutes for the case. It is unclear from the record how the grand jury minutes came to be lost: whether they were destroyed pursuant to a document destruction policy, lost in a flood, or merely lost, and no factual findings have been made on the issue.³ The defendant moved to dismiss the indictments, arguing that without the grand jury minutes, the Commonwealth could not prove that the grand jury had heard sufficient evidence to indict him. See Commonwealth v. McCarthy, 385 Mass. 160, 162 (1982). A first motion judge denied the motion in a brief margin endorsement without findings.

The defendant moved for reconsideration of his McCarthy motion, and added a number of other arguments, including that without the grand jury minutes, he was unfairly deprived of his ability to argue that the integrity of the grand jury process had been impaired. See Commonwealth v. O'Dell, 392 Mass. 445, 446-447 (1984). A nonevidentiary hearing was held before a second motion judge.⁴ Subsequently, in a margin note, the second motion judge wrote: “Defendant's request for dismissal by virtue of the missing [grand jury] minutes sounds in a purported violation of [Mass. R. Crim. P. 14 (a) (1) (A) (ii), as amended, 444 Mass. 1501 (2005)]. Yet no motion pursuant to [rule] 14 (c) has been filed.” The judge directed the defendant to file such a motion, if he chose to do so, by a certain date. The defendant filed the motion, asking for dismissal of the indictments as sanctions for the discovery violation.

The second motion judge issued a decision without further hearing. In relevant part, it reads: “I am satisfied that the Commonwealth has failed to produce the grand jury minutes in the within case. Contrary to the Commonwealth's argument, there is no substitute for the production of grand jury minutes. A judge reviewing police records may not supplant the critically important role a grand jury serves in finding probable cause for the issuance of an indictment. Pursuant to [Mass. R. Crim. P.] 14 (c), the defendant's Motion to Dismiss is [allowed].” The judge explicitly did not reach the remaining bases for dismissal proposed by the defendant.

Discussion. In reviewing a discovery violation claim pursuant to rule 14, “[w]e accept the judge's subsidiary findings of fact absent clear error and review [his] sanctions order for abuse of discretion or other error of law.” Commonwealth v. Washington W., 462 Mass. 204, 213 (2012).

Under Superior Court Standing Order 2-86, as in effect at the time of the arraignment in this case, the Commonwealth was required to provide the defendant with certain documents, including grand jury minutes. The parties here agreed that the Commonwealth would provide the grand jury minutes during discovery. Nothing in the record explicitly states whether the Commonwealth did or did not provide the grand jury minutes prior to April 1990.

Judges are permitted to enter “a broad range of orders in response to a failure to comply with discovery orders, but [are] nonetheless limited to orders that are remedial in nature, aimed at curing any prejudice caused by the violation of a discovery obligation and ensuring a fair trial.” Commonwealth v. Carney, 458 Mass. 418, 428 (2010). “Ordinarily, in the absence of wilful misconduct on the part of the authorities, charges will not be dismissed unless there has been ‘irremediable harm’ preventing the possibility of a fair trial.” Commonwealth v. Holman, 27 Mass. App. Ct. 830, 831 (1989), quoting Commonwealth v. Lam Hue To, 391 Mass. 301, 314 (1984).

When the Commonwealth violates a discovery order pursuant to rule 14 (c), such as when evidence in the Commonwealth's possession is lost or destroyed, a judge employs a two-part balancing test to determine whether to impose sanctions. First, the defendant bears a threshold burden of establishing “a reasonable possibility, based on concrete evidence rather than a fertile imagination, that access to the [material] would have produced evidence favorable to his cause.” Commonwealth v. Sanford, 460 Mass. 441, 447 (2011), quoting Commonwealth v. Neal, 392 Mass. 1, 12 (1984). If the defendant meets this burden, the judge determines “the appropriateness and extent of remedial action. The [judge] must weigh the culpability of the Commonwealth, the materiality of the evidence[,] and the potential prejudice to the defendant.” Commonwealth v. Willie, 400 Mass. 427, 432 (1987). “If a defendant is unable to meet this threshold burden, he ‘may be independently entitled to a remedy’ of exclusion if the loss or destruction of evidence was due to the bad faith or reckless acts of the Commonwealth.” Sanford, supra, quoting Commonwealth v. Williams, 455 Mass. 706, 718 (2010).

Here, the judge's decision omitted factual findings essential to support his conclusion that a discovery violation occurred, and omitted any reasoning explaining that the extreme sanction of dismissal was warranted. Commonwealth v. Almonte, 84 Mass. App. Ct. 735, 739 (2014) (“Recorded reasoning serves multiple valuable purposes. It guides the decision maker to the merits, assures the parties of a deliberative result, enables informed appellate review, and promotes public knowledge of, and confidence in, the rationality of judicial work”). Specifically, the judge's decision did not articulate whether and how the defendant has met his threshold burden, nor did it include any analysis of the relative culpability of the Commonwealth and the defendant in the loss or the destruction of the transcripts or consider possible remedies short of dismissal. Moreover, there appears to have been a substantial factual dispute whether the transcripts were or were not provided prior to the defendant's 1990 default, and a lack of clarity as to how they were lost or destroyed since that time. The basis of the judge's finding that the transcripts were not provided is not clear from the record. On remand, the judge should reconsider the matter, making specific subsidiary findings supporting his conclusion as to whether the transcripts were provided, and making detailed findings as to the culpability of the defendant for his lengthy default,⁵ and the fault of the Commonwealth for the loss or destruction of the transcripts.⁶

Because the record was not sufficiently developed on these points, “and thus provided inadequate support for the judge's findings,” the order of dismissal must be vacated and the case remanded for further proceedings consistent with this decision; [t]he judge may consider affidavits submitted by the parties, or conduct an evidentiary hearing if requested to do so.” Sanford, 460 Mass. at 451.⁷ ,⁸

So ordered.

Vacated and Remanded.

FOOTNOTES

1.   The available docket sheet does not specify the status of the case on that date. The Commonwealth alleges, based on what appear to be prosecutorial file notes, that April 10, 1990, was the scheduled trial date, and that the defendant did not appear for trial despite having met with his attorney to discuss the matter the previous day. The defendant disputes the authenticity of these notes, and no factual finding has been made as to their authenticity or credibility.

2.   The docket is unclear as to whether a default warrant remained outstanding at that time. The defendant was instructed to report to the Superior Court after his release from the District Court and the defendant contends he did so but then left. A default warrant issued, and the defendant ultimately appeared in the Superior Court five days later.

3.   However, it is undisputed that the Commonwealth cannot produce the minutes now.

4.   In a later ruling, the second motion judge indicated that the first motion judge had “authorized [him] to hear defendant's instant motion and reconsider [the first motion judge's] order.”

5.   This also appears to be a matter of factual dispute, as the defendant has argued that he was potentially in custody on the date of his default. Findings on this question may be beneficial in assessing fault for the defendant's default on April 10, 1990, and if he was not at fault, whether he bears any threshold burden.

6.   At argument, the parties disagreed about whether the statute of limitations was tolled. The resolution of this issue also may bear on the remedy available if the judge finds there was a discovery violation.

7.   We note the absence in the record of any affidavit from the defendant's prior attorney, who is presently a Superior Court judge, or an affidavit detailing attempts to contact him prior to the filing of the defendant's motions. “[T]he striking omission of an affidavit from the very person who could, presumably willingly and zealously in the interest of justice, substantiate the defendant's core contention,” may be factored into the judge's analysis on remand. Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 554 (2002). Representations were made by the Commonwealth at oral argument but that is not a substitute for factual findings based on evidence.

8.   Though “[a]n appellate court is free to affirm a ruling on grounds different from those relied on by the [lower court] judge if the correct or preferred basis for affirmance is supported by the record,” Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997), there is no requirement that we do so. Based on the present record, we decline the defendant's invitation to reach alternative grounds explicitly passed over by the second motion judge.