Date: 09-18-2016

Case Style:

Case Number: SJC-11929, SJC-11944

Judge: Barbara Lenk

Court: Massachusetts Appeals Court

Plaintiff's Attorney: Kathryn Leary

Defendant's Attorney:

Valerie DePalma

Description: These cases stem from two unrelated, nonfatal
shootings in the Roxbury section of Boston in June, 2015, and
July, 2015. Angelo Teixeira was arrested for the first
shooting, and Christopher Meade for the second. Meade and
Teixeira each were charged by complaint in the Boston Municipal
Court (BMC) with a number of felonies, including some that are
outside the final jurisdiction of that court. Pursuant to G. L.
c. 276, § 38, probable cause hearings were scheduled for each
defendant to determine whether there was sufficient evidence to
bind them over to the Superior Court for trial. The
Commonwealth was ordered to provide the defendants with
discovery in advance of those hearings. Noting that judges of
the BMC and the District Court Department2 are not explicitly
authorized, either by statute or by the Massachusetts Rules of
Criminal Procedure, to order discovery in preparation for
probable cause hearings (prehearing discovery), the Commonwealth
2 While the discussion concerns judges of the Boston Municipal Court (BMC), our analysis and conclusion apply equally to judges of the District Court. See Victor V. v. Commonwealth, 423 Mass. 793, 796 (1996).
3
objected to the discovery orders and filed interlocutory
appeals.
In considering these cases, we must determine whether
judges of the BMC may order prehearing discovery in the absence
of specific authorization from G. L. c. 276, § 38, the Rules of
Criminal Procedure, or any trial court standing order.3 We
conclude that, because such judges have inherent authority to
issue orders essential to their capacity to decide cases, they
may, in their discretion, order prehearing discovery. We
conclude also that, here, the judges did not abuse their
discretion by issuing these discovery orders, which were limited
in scope and which would have allowed defense counsel reasonably
to prepare for the scheduled probable cause hearings.4
1. Background. a. Teixeira. On June 20, 2015, Boston
police officers were dispatched to the scene of a shooting in
Roxbury. There, they encountered Teixeira, who had been shot in
3 We acknowledge the amicus briefs submitted by the Committee for Public Counsel Services in both cases, and the Massachusetts Association of Criminal Defense Lawyers in Teixeira's case.
4 Because we affirm the discovery orders on the basis of the judge's discretionary powers, we do not reach the defendants' contention that prehearing discovery is necessary as a matter of constitutional due process. Cf. Myers v. Commonwealth, 363 Mass. 843, 854 (1973) (having disposed of case on statutory grounds, court declined to decide whether "due process requirements of the United States Constitution mandate that the defendant in a probable cause hearing shall have the right to cross-examine prosecution witnesses and present testimony in his own defence").
4
the leg and soon thereafter was transported to a hospital. The
officers interviewed three witnesses, including an off-duty
police officer from another jurisdiction, who said that they
heard gunshots and that, subsequently, someone matching
Teixeira's description had fired several shots at "unknown
persons." Police obtained surveillance footage from a store
near the scene, which showed two individuals -- one of whom is
apparently believed to be Teixeira -- "remov[ing] items from the
store," "flee[ing]" down the street, and "plac[ing] a white
garbage bag in the rear of [a nearby] yard."5 Police recovered
two firearms from the garbage bag.
On June 24, 2015, a complaint issued in the BMC, charging
Teixeira with four crimes within the final jurisdiction of that
court: carrying a firearm without a license, G. L. c. 269,
§ 10 (a); carrying a loaded firearm without a license, G. L.
c. 269, § 10 (n); possession of ammunition without a firearm
identification (FID) card as a subsequent offense, G. L. c. 269,
§ 10 (h) (1); and assault and battery by means of a dangerous
weapon, G. L. c. 265, § 15A (b) (three counts). The complaint
also charged him with two crimes -- carrying a firearm without a
license as a second offense, G. L. c. 269, § 10 (a), (d); and
committing a firearms violation having been convicted of three
5 Police reports do not reflect whether the episode recorded by the surveillance camera occurred before or after the shooting.
5
violent crimes or three serious drug offenses, G. L. c. 269,
§ 10G (c) -- for which final jurisdiction lies only in the
Superior Court.6
Teixeira was arrested and arraigned the same day. At
arraignment, the judge scheduled a probable cause hearing for
July 7, 2015. Over the Commonwealth's objection, the judge
granted Teixeira's motion for discovery in advance of that
hearing. He ordered that the names and contact information of
the Commonwealth's three witnesses be turned over by the close
of business the following day, and that the surveillance footage
be turned over the following week, four days before the hearing.
The judge also issued a protective order "direct[ing defense
counsel] not to provide to [Teixeira] any contact information on
any witness." The protective order was later expanded to
prevent Teixeira from learning the names of the civilian
witnesses.
The following day, June 25, 2015, the Commonwealth filed a
motion for reconsideration with respect to the discovery orders.
A hearing on the Commonwealth's motion was scheduled for June
26, 2105. At that hearing, the Commonwealth's motion was
6 During arraignment on these charges, which took place in the BMC on June 24, 2015, Teixeira made threatening gestures and statements to Boston police detectives. This resulted in additional charges of witness intimidation, G. L. c. 268, § 13B, and threatening to commit a crime, G. L. c. 275, § 2, both of which are within the BMC's final jurisdiction.
6
denied, and the judge ordered that the witness information be
turned over by the close of business. The judge did, however,
allow the Commonwealth's motion to continue the probable cause
hearing for approximately one month.
Later that day, the Commonwealth filed a notice of appeal
with respect to the discovery order, a motion to stay the order
pending appeal, and a request for a written ruling. The judge
stayed the discovery order until the close of business on June
30, 2015. The judge also issued a written ruling, explaining
that he had ordered discovery because
"[a]ffording such minimal discovery as the identities of witnesses and an opportunity to view video footage of the alleged incident in advance of the probable cause hearing is essential to the defendant's ability meaningfully to exercise his rights to confrontation and to present evidence at that hearing. . . . For example, one of the witnesses might describe the alleged shooter differently from the way that the defendant is described in the police report or from other witness accounts. Without the witnesses' identities being disclosed to defense counsel in advance of the hearing, such discrepancies, which might raise genuine issues with respect to probable cause, could not be explored . . . ."
On June 30, 2015, the Commonwealth filed a motion to
further stay the discovery order. The judge denied the motion,
and the stay expired, by its own terms, at the close of business
that day. The Commonwealth did not provide the ordered
discovery.
The next day, July 1, 2015, Teixeira filed a motion seeking
sanctions. At a hearing later that day, the judge asked the
7
Commonwealth to address why "[nineteen] and a half hours after
that stay expired . . . there's been no compliance." He noted,
"[M]y order is in effect . . . [A]s far as I know, it hasn't been stayed, and I'm starting to get a little impatient, because I feel like I'm trying to do things procedurally in a way that respects the law and procedure. And I'm starting to feel like not everybody is adhering to the same rules."
The judge did not then issue a ruling on sanctions. Rather, he
allowed the Commonwealth's request for seven days in which to
respond to the defendant's motion for sanctions.
On July 2, 2015, the Commonwealth filed an emergency
petition in the county court, seeking an immediate stay of
execution of the discovery order, and also seeking to vacate
that order. The motion for a stay was allowed on July 7, 2015,
and a single justice thereafter reserved and reported the
Commonwealth's petition to the full court.
On July 30, 2015, a Suffolk County grand jury returned
eleven indictments against Teixeira.7 On August 26, 2015, the
7 Teixeira was charged with four counts of attempted assault and battery by means of a firearm, G. L. c. 265, § 15F; one count of carrying a firearm without a license as a second offense, G. L. c. 269, § 10 (a) and (d), and after having been convicted of three violent crimes or three serious drug offenses, G. L. c. 269, § 10G (c); two counts of possessing ammunition without a firearm identification card, G. L. c. 269, § 10 (h), and after having been convicted of three violent crimes or three serious drug offenses, G. L. c. 269, § 10G (c); one count of carrying a loaded firearm, G. L. c. 269, § 10 (n); one count of receiving a firearm with a defaced serial number, G. L. c. 269, § 11C; and two counts of witness intimidation, G. L. c. 268, § 13B.
8
defendant was arraigned in the Superior Court and was provided
with the discovery he had been seeking from the BMC.
b. Meade. Shortly after midnight on July 5, 2015, a
"black male" wearing a red sweatshirt approached a sedan parked
on a street in the Roxbury section of Boston, and fired
approximately three shots into the vehicle. Four people,
including the driver, were inside; two passengers were hit. The
driver drove away from the scene, pulled up next to a nearby
police cruiser, and sought help. The two victims were taken to
a hospital. Police interviewed the driver and one of the
passengers,8 and obtained a surveillance video recording of the
shooting.
On July 8, 2015, police showed a photographic array, which
did not contain a photograph of Meade, to the driver and one of
the passengers. Neither could identify any of the pictured
individuals as the shooter. On July 10, 2015, Meade was
arrested and held in custody on an unrelated charge. On July
11, 2015, police presented another photographic array to the
driver and to the passenger,9 this time containing a photograph
of Meade. Both separately identified Meade as the shooter.
8 Because the copy of the relevant police report in the record is redacted, it is not clear whether the passenger interviewed was one of the victims.
9 It is not clear whether this was the same passenger to whom police had shown the first photograph array.
9
Two days later, a ten-count complaint issued against Meade
in the BMC. Three of the counts –- carrying a firearm without a
license, G. L. c. 269, § 10 (a); carrying a loaded firearm
without a license, G. L. c. 269, § 10 (n); and possessing
ammunition without an FID card, G. L. c. 269, § 10 (h) (1) --
were within the final jurisdiction of that court. The other
seven were not.10 Meade was arraigned the same day.
At arraignment, a probable cause hearing was scheduled for
August 12, 2015. In advance of that hearing, Meade sought
discovery of the photographic arrays, several police reports,
and contact information for witnesses mentioned in the reports.
Over the Commonwealth's objection, the judge allowed Meade's
motion for discovery, ordering that the discovery "be disclosed
and turned over by" August 10, 2015, two days before the
hearing. The judge stated that Meade's "ability to defend
himself and assist his attorney in his defense [at the probable
cause hearing] will be impacted severely if they're not allowed
to obtain this discovery." She also entered a protective order
10 The counts over which there was no final jurisdiction were four counts of armed assault with intent to murder, G. L. c. 265, § 18 (b); carrying a firearm without a license as a second offense, G. L. c. 269, § 10 (a), (d); committing a firearm violation having been convicted of three violent crimes or three serious drug offenses, G. L. c. 269, § 10G (c); and possessing a firearm while committing a felony, G. L. c. 265, § 18B.
10
allowing disclosure of the witnesses' contact information only
to Meade's counsel.11
On August 10, 2015, the day discovery was to be turned
over, the Commonwealth filed a petition in the county court
pursuant to G. L. c. 211, § 3, seeking relief from the discovery
order, and also seeking a stay of that order. A stay issued
later that day, and, on August 14, 2015, the single justice
vacated the order. The defendant thereafter filed a notice of
appeal. On October 9, 2015, a Suffolk County grand jury
returned eleven indictments against Meade.12 On November 16,
2015, the Commonwealth provided Meade the discovery that he had
sought in the BMC.
2. Discussion. The Commonwealth contends that the two
judges did not have authority to order discovery in advance of
the probable cause hearings. Teixeira maintains that the
11 On July 31, 2015, the defendant filed a second motion for discovery, seeking other evidence referenced in the police report. The court took no action on that motion.
12 Meade was indicted on four counts of armed assault with intent to murder, G. L. c. 265, § 18 (b); carrying a firearm without a license as a second offense, G. L. c. 269, § 10 (a) and (d), and after having been convicted of three violent crimes or three serious drug offenses, G. L. c. 269, § 10G (c); carrying a loaded firearm, G. L. c. 269, § 10 (n); assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A; two counts of assault and battery by means of discharging a firearm, G. L. c. 265, § 15E; and two counts of attempted assault and battery by means of discharging a firearm, G. L. c. 265, § 15F.
11
Commonwealth should be sanctioned for its failure to comply with
the discovery order in the BMC.
a. Mootness. Because the defendants have been indicted
and are no longer entitled to probable cause hearings, the
discovery orders themselves are moot. Mass. R. Crim. P. 3 (f),
as appearing in 442 Mass. 1502 (2004). Commonwealth v. Perkins,
464 Mass. 92, 95 (2013) (Perkins). See Lataille v. District
Court of E. Hampden, 366 Mass. 525, 531 (1974) (Lataille)
("return of an indictment is itself a determination of probable
cause and renders unnecessary a preliminary hearing").
"However, it is within the discretion of this court to answer
questions that, due to circumstances, no longer may have direct
significance to the parties but raise issues of public
importance and, because of their nature, may be 'capable of
repetition, yet evading review.'" Perkins, supra, quoting
Lockhart v. Attorney Gen., 390 Mass. 780, 782–783 (1984).
The issue here -- whether a BMC judge may order discovery
in anticipation of a probable cause hearing -- is one that
"implicate[s] the . . . interests of all defendants who are so
situated, and more generally [is] significant for the proper
administration of the criminal justice system." See Perkins,
supra. The issue also is likely to evade appellate review,
since it becomes moot upon the return of an indictment, when a
defendant loses his or her right to a probable cause hearing.
12
See Lataille, supra. Moreover, "[w]e have been advised that the
issue is occurring on a frequent basis in the trial courts and
uncertainty exists whether an order similar to the one[s] in
issue can be entered." Commonwealth v. Durham, 446 Mass. 212,
217, cert. denied, 549 U.S. 855 (2006). We therefore consider
the issue raised in these cases.
b. Discovery. Defendants who are charged by complaint in
the BMC, but whose cases will be finally adjudicated in the
Superior Court, have a statutory right to a probable cause
hearing, "unless an indictment has been returned for the same
offense."13 Mass. R. Crim. P. 3 (f). See Lataille, supra
("indictment is itself a determination of probable cause and
renders" hearing "unnecessary"). General Laws c. 276, § 38,
provides that, "as soon as may be" after a complaint issues, a
BMC judge
"shall . . . examine on oath the complainant and the witnesses for the prosecution, in the presence of the defendant, relative to any material matter connected with such charge. After the testimony to support the prosecution, the witnesses for the prisoner, if any, shall be examined on oath, and he may be assisted by counsel in such examination and in the cross examination of the witnesses in support of the prosecution."
13 This right applies both to defendants whose charges are outside the final jurisdiction of the BMC, and those who are "charged . . . with an offense within the concurrent jurisdiction of the [BMC] and Superior Courts for which the [BMC] will not retain jurisdiction." Mass. R. Crim. P. 3 (f), as appearing in 442 Mass. 1502 (2004).
13
Following this hearing, the judge assesses whether "there is
probable cause to believe that the defendant committed the crime
or crimes alleged in the complaint" and, on that basis, whether
to "bind the defendant over to the Superior Court" for final
adjudication of the charges.14 Mass. R. Crim. P. 3 (f).
Neither the statute, the rules of criminal procedure, nor
any trial court standing order provides for discovery in advance
of the probable cause hearing. The question we confront is
whether a judge, in his or her discretion, nonetheless may order
discovery to promote the parties' full participation in the
hearing and, thereby, to assist in the assessment of probable
cause. See Myers v. Commonwealth, 363 Mass. 843, 851-852 (1973)
("primary function of the probable cause hearing of screening
out 'an erroneous or improper prosecution,' . . . can only be
effectuated by an adversary hearing where the defendant is given
a meaningful opportunity to challenge the credibility of the
prosecution's witnesses and to raise any affirmative defenses he
14 The probable cause standard used at such a hearing is more demanding than "probable cause to arrest." Myers v. Commonwealth, 363 Mass. 843, 849 (1973). The judge
"view[s] the case as if it were a trial and he were required to rule on whether there is enough credible evidence to send the case to the jury. Thus, the magistrate should dismiss the complaint when, on the evidence presented, a trial court would be bound to acquit as a matter of law."
Id. at 850.
14
may have" [citation omitted]). For the reasons that follow, we
conclude that, subject to certain limitations, a judge may order
discovery to assist in this process.
General Laws c. 276, § 38, is silent on the question
whether a BMC judge may issue discovery orders, or any other
orders, in anticipation of a probable cause hearing. That such
authority is not provided explicitly in the terms of the
statute, however, does not mean that it does not exist.
"[C]ourts have inherent power 'to do whatever may be done under
the general principles of jurisprudence to insure to the citizen
a fair [hearing], whenever his life, liberty, property or
character is at stake'" (citation omitted). Commonwealth v.
Charles, 466 Mass. 63, 73 (2013). We have noted, in this vein,
that "the District Court [and the BMC] have the power to
[issue] . . . orders which are reasonably designed to provide
the means for intelligent consideration of probable cause"
(citation omitted). Commonwealth v. Hinterleitner, 391 Mass.
679, 683 (1984). To the extent that a judge's order is "a
legitimate exercise of [this] inherent power of the District
Courts [or BMC], the lack of statutory authorization for that
[order] is immaterial." Brach v. Chief Justice of the Dist.
Court Dep't, 386 Mass. 528, 535 (1982).
A court's "[i]nherent powers" constitute, among other
things, those "whose exercise is essential to . . . [the
15
court's] capacity to decide cases" (citation omitted).15 Id.
This includes the authority "to facilitate . . . discovery."
DaRosa v. New Bedford, 471 Mass. 446, 454 (2015), quoting
Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209, 214 (2011).
See Cavanaugh v. McDonnell & Co., 357 Mass. 452, 454 (1970),
quoting Owens-Illinois Glass Co. v. Bresnahan, 322 Mass. 629,
631 (1948) (power to order discovery "does not depend upon
statute, but is a part of the general jurisdiction of a court of
equity"); G. L. c. 218, § 19C ("district court and [BMC]
departments of the trial court shall have the same equitable
powers and jurisdiction as is provided for the superior court").
Accordingly, to the extent discovery is "essential" to a judge's
"capacity to decide" the question of probable cause, it is
within his or her inherent powers to order it. See Brach v.
Chief Justice of the Dist. Court Dep't, supra at 535.
We are persuaded that, in at least some instances, a judge
reasonably could conclude that prehearing discovery is
15 As a general matter, a court's inherent powers are strongest with respect to matters of procedure. See Brach v. Chief Justice of the Dist. Court Dep't, 386 Mass. 528, 535 (1982) ("All the inherent powers recognized by this court . . . have involved the internal functioning of the judiciary"). See, e.g., Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209, 213-214 (2011) (inherent authority "to issue protective orders"); Commonwealth v. Wilcox, 446 Mass. 61, 69 (2006) (inherent authority "to grant pretrial bail and [to] compel the presence of a defendant at trial"); George W. Prescott Publ. Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 277 (1985) (inherent authority "to impound . . . files" [citation omitted]).
16
"essential." This is so because, at a hearing pursuant to G. L.
c. 276, § 38, "complete cross-examination and the . . .
present[ation of] affirmative defenses [a]re crucial and
necessary to effectuate a true probable cause standard,"
Lataille, supra at 530; these functions, in turn, often are
facilitated by material obtained through discovery. See, e.g.,
Myers, supra at 852 (absent evidence obtained by defendant
before hearing and used during cross-examination, "examining
magistrate could not have possibly made an informed judgment").
The Appeals Court reached a similar conclusion in
Commonwealth v. Silva, 10 Mass. App. Ct. 784, 791 (1980). In
holding that a prosecutor may be sanctioned for disobeying an
order to provide prehearing discovery, the court presumed that a
District Court judge has inherent authority to issue such an
order. See id. at 790-791 ("In connection with that hearing, it
is essential that the District Court have the power to enforce
any of its orders which are reasonably designed to provide the
means for intelligent consideration of probable cause . . .").
Similarly, courts in other jurisdictions have held that a
"court[] ha[s] the inherent power to order appropriate . . .
discovery . . . ancillary to [its] statutory power to determine
whether there is probable cause to hold the defendant to
answer." Holman v. Superior Court of Monterey County, 29 Cal.
3d 480, 485 (1981) (magistrates may order such discovery
17
notwithstanding that criminal charges are outside their final
jurisdiction). See State v. Laux, 167 N.H. 698, 704 (2015)
("circuit court has the inherent authority, within its sound
discretion, to order discovery prior to the preliminary hearing"
even where final adjudication will take place in superior
court); State v. Easthope, 668 P.2d 528, 531 (Utah 1983) ("power
to compel discovery is . . . inherent in the magistrate's power
to conduct" probable cause hearing). See also People v. Laws,
218 Mich. App. 447, 451 (1996) ("district court may order
discovery in carrying out its duty to conduct preliminary
examinations" and may do so "before the preliminary
examination").16
This analysis notwithstanding, the Commonwealth contends
that BMC judges have no authority to order prehearing discovery,
and that, even if they have such authority, they ought not to
exercise it.
16 But see People v. Quinn, 183 Colo. 245, 251 (1973) ("discovery should not be ordered prior to the preliminary hearing"); Janklow v. Talbott, 89 S.D. 179, 183 (1975) (same). The Commonwealth cites two other decisions from other jurisdictions that are claimed to reflect a similar conclusion. Those cases however, involved materially different issues from the question before this court. See State v. O'Brien, 349 Wis. 2d 667, 682 (2013), aff'd, 354 Wis. 2d 753, 850, cert. denied, 135 S. Ct. 494 (2014) (no constitutional right to prehearing discovery); Almada v. State, 994 P.2d 299, 303 (Wyo. 1999) (prehearing discovery proper in general, but improper where judge "ordered the State to permit discovery of material which did not pertain to probable cause").
18
The Commonwealth notes, first, that BMC judges may not
depart from the rules of criminal procedure, which make no
provision for discovery in advance of a probable cause hearing.
See Carlisle v. United States, 517 U.S. 416, 426 (1996)
("Whatever the scope of [a court's] 'inherent power,' however,
it does not include the power to develop rules that circumvent
or conflict with the Federal Rules of Criminal Procedure").
This silence, the Commonwealth argues, is significant because
the rules anticipate other occasions when BMC judges may or must
issue discovery orders. See Mass. R. Crim. P. 11 (b), as
appearing in 442 Mass. 1509 (2004) (at pretrial hearing, courts
"shall" consider discovery motions); Mass. R. Crim. P. 14, as
amended, 444 Mass. 1501 (2005) (requiring automatic pretrial
discovery of certain materials); Dist./Mun. Cts. R. Crim. P. 3
(where charges fall within court's final jurisdiction, judge
"shall" issue order at arraignment "requir[ing] the parties to
provide . . . discovery"). These occasions, in the
Commonwealth's view, "occupy the field" and leave no room for
the discretionary discovery at issue here.17
17 The Commonwealth also argues that, if the Legislature had intended to provide defendants with a prehearing right to discovery, it would have stated so explicitly, much as it has in other contexts. See, e.g., G. L. c. 231, §§ 61-69 (right to discovery in civil litigation). The question here, however, is whether a court has discretionary authority to order discovery, not whether the Legislature provided defendants with a right to such discovery.
19
The Commonwealth's contention is unavailing. The fact that
the procedural rules are silent about a court's authority to
exercise one of its inherent powers does not imply that the
rules envision the court being deprived of that power. See
Bradford v. Knights, 427 Mass. 748, 752 (1998) ("While the
Massachusetts Rules of Criminal Procedure do not expressly
permit a judge to rehear a matter, no policy prohibits
reconsideration of an order or judgment in appropriate
circumstances," and doing so is an "inherent power of a court"
[citation omitted]). See also Reporters' Notes (2004) to
Rule 1, Mass. Ann. Laws Court Rules, Rules of Criminal
Procedure, at 1343 (LexisNexis 2015) (rules are "general and
flexible, prescribing only basic essentials").
Nor are we persuaded that the rules of criminal procedure
cited by the Commonwealth were intended to occupy the field with
respect to discovery. Those rules concern one specific issue:
the mandatory pretrial discovery process. See Mass. R. Crim.
P. 13 (e), as appearing in 442 Mass. 1516 (2004) (defendants
have "right to a hearing" on motions for further discovery);
Mass. R. Crim. P. 14 (requiring automatic discovery of certain
materials); Dist./Mun. Cts. R. Crim. P. 3 (at arraignment, judge
"shall" issue discovery order). Even if these rules set forth
the exclusive means through which mandatory pretrial discovery
is to be conducted, they imply nothing about the availability or
20
lack of availability of the discretionary prehearing process at
issue here.18
As mentioned, the Commonwealth maintains also that, even if
BMC judges have authority to order prehearing discovery, it
would be unwise for them to exercise it. The Commonwealth
expresses concern that, because prehearing discovery might
reveal the identities of the prosecution's witnesses, it will
lead to witness tampering.19 Such tampering is asserted to be
18 Indeed, the Commonwealth concedes in its brief that, "in the course of a probable cause hearing, there may arise circumstances in which a judge may properly order a Commonwealth witness to disclose information that is central to the determination of probable cause." The rules of criminal procedure, however, contain no explicit provision concerning such an order.
19 The Commonwealth contends further that prehearing discovery will not provide defendants with significant practical benefits, as they can learn the essential aspects of the Commonwealth's case either at the hearing itself or when discovery is turned over upon the conclusion of a "prompt grand jury investigation." See Janklow v. Talbott, 89 S.D. at 181182; Superior Court Standing Order 2-86 (discovery to be provided at arraignment).
In practice, however, probable cause hearings, which are meant to be conducted "as soon as may be" after a defendant is charged, see G. L. c. 276, § 38, have largely become extinct. This has happened not, as the Commonwealth contends, because "prompt grand jury investigations" usually lead to the issuance of an indictment before the scheduled date of the probable cause hearing, but because the Commonwealth routinely is granted a series of continuances -- usually between three and four months in total length –- that postpone the hearing until an indictment issues and the hearing no longer is required. See Commonwealth v. Perkins, 464 Mass. 92, 108 (2013) (Gants, J., concurring) ("a probable cause hearing in a criminal case is virtually never conducted in the courts of Massachusetts; the only preliminary
21
particularly problematic during the early stages of an
investigation, when witnesses might not yet have revealed the
full extent of their knowledge to police or to a grand jury.
See Commonwealth v. Tavares, 459 Mass. 289, 305 (2011) (Gants,
J., concurring) (instances of "victims or witnesses refusing to
cooperate or changing or recanting earlier testimony . . .
occurred in up to ninety per cent of [Suffolk County district
attorney's] cases involving guns, gangs, or serious violence").
While we acknowledge the gravity of this concern, judges of
the BMC have adequate means at their disposal to address it if
the situation requires. For example, when discovery is
warranted, they may, as here, issue protective orders concerning
a witness's identity or contact information, allowing it to be
disclosed only to defense counsel. See Mass. R. Crim. P. 14 (a)
(6) ("judge may, for cause shown, grant discovery to a defendant
on the condition that the material to be discovered be available
only to counsel for the defendant"). See also Berend, Less
Reliable Preliminary Hearings and Plea Bargains in Criminal
Cases in California: Discovery Before and After Proposition
115, 48 Am. U. L. Rev. 465, 522 n.244 (1998) ("study . . .
screening of a defendant's case is conducted by a grand jury, sometimes months after the initial appearance").20 Charges of witness intimidation, G. L. c. 268, § 13B, were pending against both defendants. In Meade's case, the Commonwealth gave as an additional reason that the shooting was an apparently "random act of violence" and that the victims and perpetrator did not know each other.
22
concluded that early and broad discovery in California not only
encouraged more early guilty pleas, but had no impact on witness
intimidation"). Where a protective order is insufficient,
judges simply may deny the discovery request altogether. Cf.
Cronin v. Strayer, 392 Mass. 525, 534 (1984) (trial court judges
are "in the best position to weigh fairly the competing needs
and interests of parties affected by discovery" [citation
omitted]).
We turn now to the orders at issue here. The parties
recognize that, to the extent that BMC judges have authority to
order prehearing discovery, there was no abuse of discretion in
ordering it in these two cases. In each, the central issue at
the probable cause hearing was likely to be whether the
defendants had been identified correctly by witnesses, and each
defendant sought discovery of materials that would allow him to
test this issue, such as police reports, photographic arrays,
the identities of the witnesses, and surveillance video. See
Holman v. Superior Court of Monterey County, 29 Cal. 3d 480,
485-486 (1981) (judge properly ordered "limited discovery
directed to the restricted purpose of the preliminary
examination"). Without these materials, as the judge in
Teixeira's case reasoned, "discrepancies [regarding
identification], which might raise genuine issues with respect
to probable cause, could not be explored" at such a hearing.
23
See id. at 485 (discovery proper if has been "show[n] that such
discovery is reasonably necessary to prepare for the preliminary
examination"). At the same time, recognizing the Commonwealth's
particularized concerns regarding witness intimidation,20 the
judges in both cases issued protective orders shielding the
witnesses' contact information from the defendants, and the
judge in Teixeira's case issued an order preventing the
defendant from learning their names. Given that the defendants
demonstrated good cause for seeking discovery directed to the
restricted purpose of the probable cause hearing, that the
resulting orders were carefully circumscribed, and that they
were accompanied by protective orders addressing the
Commonwealth's particularized concerns, we discern no abuse of
discretion.
c. Teixeira's motion for sanctions. Teixeira asks that
this court impose sanctions on the Commonwealth for failing to
comply with the BMC judge's discovery order during the period
before a stay was issued by the single justice.21 He seeks
20 Charges of witness intimidation, G. L. c. 268, § 13B, were pending against both defendants. In Meade's case, the Commonwealth gave as an additional reason that the shooting was an apparently "random act of violence" and that the victims and perpetrator did not know each other.
21 The discovery order was issued on June 24, 2015, took effect on June 30, 2015, and was stayed by a single justice of this court seven days later, on July 7, 2015.
24
dismissal of the indictments or, alternatively, imposition of
another "appropriate sanction."
The Commonwealth acted inappropriately by failing to comply
with the judge's order. Even if that order had been issued in
error, the Commonwealth was not without its remedies. It could
have, as in Meade's case, sought an immediate stay from the
single justice pursuant to G. L. c. 211, § 3. Instead, it
waited until eight days after the order issued -- and two days
after it went into effect -- to seek such relief. The
Commonwealth may not fail to pursue a timely appeal and then
disobey a judge's order when the opportunity for appeal is no
longer available. "Litigants may not resort to self-help
remedies and unilaterally flout court decrees." Commonwealth v.
Carney, 458 Mass. 418, 433 n.20 (2010). If a court issues a
directive that a party believes to be unlawful, it "must be
obeyed, and until it is reversed by orderly review, it is to be
respected." Id., quoting Mohamad v. Kavlakian, 69 Mass. App.
Ct. 261, 264 (2007).
Nonetheless, we are constrained to conclude that dismissal
would not be an appropriate sanction for the Commonwealth's
conduct, as "we have never upheld the dismissal of a complaint
or indictment for misconduct in the absence of a showing of
prejudice." Commonwealth v. Hernandez, 421 Mass. 272, 278
(1995). Teixeira has not attempted to make such a showing, nor
25
would he be able to do so. See id. at 279-280 (before
dismissing complaint, trial judge must determine that "the
prosecutor's refusal to disclose [information following
discovery order] 'caused such irreparable prejudice that the
defendant could not receive a fair trial if the complaint were
reinstated'" [citation omitted]).
Whether some other sanction is appropriate we leave to the
discretion of the Superior Court judge in whose jurisdiction
this case now lies. See id. at 280 & n.8 (while dismissal with
prejudice not appropriate, case remanded for factual findings
and determination whether "some other sanction" appropriate);
Reporters' Notes (Revised, 2004) to Rule 14, Mass. Ann. Laws
Court Rules, Rules of Criminal Procedure, at 1517 (rule
regarding sanctions "is based on [the] assumption that the trial
court is in the best situation to consider the opposing
arguments concerning a failure to comply with a discovery order
and to fashion an appropriate remedy").

Outcome:

The orders requiring discovery in the
Boston Municipal Court are affirmed. In Teixeira's case, the
matter is remanded to the Superior Court for consideration,
after any hearings that the judge may deem appropriate, whether
a sanction should be imposed on the Commonwealth for its refusal
to obey the Boston Municipal Court judge's order and, if so, the
nature of the sanction.

Plaintiff's Experts:

Defendant's Experts:

Comments:

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