In this case, we are called on to determine the propriety of a judge’s order imposing on the Commonwealth both a $25,000 punitive sanction and attorney’s fees for what the judge concluded was a failure to comply with discovery orders issued pursuant to Mass. R. Crim. P. 14, as amended, 444 Mass. 1501 (2005). We conclude that sanctions imposed pursuant to Mass. R. Crim. P. 14 (c) (1), as appearing in 442
1. Background.
a. The arrest. On September 5, 2008, at approximately 1 a.m., the defendants Kejaun T. Carney, Kenny D. Farrow, and Ronald Watson (defendants) left the Western Front nightclub in Cambridge in a rented automobile. Members of the Boston police department and State police assigned to the youth violence strike force followed the vehicle onto Memorial Drive and directed the driver to pull over for failure to remain within marked lanes. Four officers approached the vehicle and reported an odor of “fresh marijuana.” The officers ordered the defendants out of the vehicle and searched the immediate passenger area. During this search, a Boston police detective observed the comer of a plastic bag jutting out from the moulding around the gearshift console. The detective lifted the console and removed the bag, which held a loaded .40 caliber pistol. The defendants were arrested and taken to the State police barracks located at Leverett Circle (Leverett Circle barracks) in Boston. A State trooper drove Carney separately. While removing Carney from the back seat, the trooper found a plastic bag containing four
Later that morning, the defendants were arraigned in the Cambridge Division of the District Court Department (District Court) on firearm charges, and Carney was charged additionally with drug offenses.
b. The ex parte orders. Four days later, on September 9, Farrow’s counsel filed an ex parte motion with the District Court, seeking an order directing the Commonwealth to provide an opportunity for immediate inspection of the “items seized in this matter.” In the motion, Farrow’s counsel argued that an assertion in the police report that officers could detect an odor of “fresh marijuana” from outside the vehicle was implausible given the small quantity seized and its multiple layers of plastic packaging. Farrow’s counsel stressed that, in order to prepare a motion for suppression of the pistol — presumably on grounds that the officers lacked a sufficient basis for the search of the vehicle — and to rebut an anticipated argument from the Commonwealth that the drug’s odor had dissipated, counsel for all three defendants pressingly needed to smell the seized marijuana. Farrow’s counsel similarly argued that the judge should hear the motion ex parte and impound it thereafter.
At approximately 12:45 p.m., the case was recalled, at which time Farrow’s counsel reported to the judge that she had spoken over the telephone with Trooper Thomas Briody at the Leverett Circle barracks, who told her that he would not open the evidence bag containing the marijuana in compliance with the court order.
At 2 p.m., in an open court hearing before the judge, defense counsel jointly submitted a proposed second order, requiring the Commonwealth to present all evidence for inspection by 10 a.m. the next day, September 10, in District Court, regardless of its present locus. The assistant district attorney objected, citing concerns over the possible contamination of evidence, and informed the judge of the Commonwealth’s intent to petition for extraordinary relief from a single justice of the Supreme Judicial Court, pursuant to G. L. c. 211, § 3. The judge in
At 9:50 a.m., the single justice orally stayed the judge’s 10 a.m.
In Maynard, at 10:41 a.m., the pistol was returned to Trooper Walsh after its DNA swabbing. Around 11:30 a.m., after releasing Trooper Briody from court and instructing him not to perform any testing on the marijuana, the assistant district attorney again telephoned Trooper Walsh, leaving a message for him not to conduct any further testing on the pistol. Trooper Walsh, however, did not get this message until after he had returned from lunch and test-fired the pistol, this time with one of the bullets seized during the arrest. Trooper Walsh estimated that he finished his test-firing at approximately 1:30 p.m.
At 1:50 p.m., the single justice issued a written order that, inter aha, stayed the 10 a.m. order, instructed the Commonwealth to maintain “the status quo of the evidence,” and directed all counsel to submit proposed written findings to the judge on the initial order. In light of the fact that the District Court judge had no opportunity to review and consider the Sullivan affidavit, the single justice also remanded the matter for a rehearing.
After the rehearing on September 11, the District Court judge issued an amended order that mandated inspection of specifically enumerated evidence, including the pistol, bullets, mari
After learning that the pistol had already been swabbed for DNA residue and test-fired in Maynard, the Commonwealth submitted a supplemental filing to the county court, dropping its objection to defense counsel’s inspection of the pistol but renewing its objection with regard to the marijuana and plastic bags, citing “environmental contamination.” The filing states incorrectly that “all testing of evidence was suspended in light of [the judge’s] orders of September 9, 2008.” On September 18, the single justice denied the Commonwealth’s petition for extraordinary relief and vacated his prior stay, reasoning that the precautions imposed by the judge’s amended order were an adequate safeguard against contamination.
c. The sanctions. On September 22, the judge ordered the Commonwealth to arrange inspection by 1 p.m. that day, and the defense team inspected the evidence in Boston and Maynard. That same day, counsel for the defendants jointly filed a motion for sanctions against the Commonwealth pursuant to rule 14 (c) (1), arguing, inter alia, that the Commonwealth “willfully and improperly obstructed the execution” of the judge’s discovery orders by performing tests on the pistol on September 10, and made “material false representations and arguments” to the District Court judge and the single justice. Commencing on October 22, the judge presided over an evidentiary hearing on the motion for sanctions that spanned three weeks. Although not the object of the defendants’ ex parte discovery motion, the handling of the ballistics evidence was the principal focus of the hearing and the resulting sanctions order. The defendants called seventeen witnesses, and the judge ordered testimony from two assistant district attorneys and declared them hostile witnesses. The Commonwealth did not present evidence.
On December 23, the judge issued an order (sanctions order) sanctioning the Commonwealth $25,000 in punitive fines, plus the fees and expenses incurred by each defense attorney in litigating the motions for discovery and sanctions. The judge found that the Commonwealth “did not maintain the status quo
On February 27, 2009, the Commonwealth sought relief from the sanctions order pursuant to G. L. c. 211, § 3. A single justice ordered a stay of the order, and reserved and reported the case to the full court.
2. Discussion. We review the judge’s sanctions order for abuse of discretion or other error of law. On review of the record, we follow the well-established principle that subsidiary findings of fact made by the judge below will be accepted by the court absent clear error. See Commonwealth v. Aarhus, 387 Mass. 735, 742 (1982). We begin with a discussion of the boundaries of rule 14 (c) (1), then examine the findings that the Commonwealth contravened discovery orders and underscore the limited range of circumstances in which ex parte discovery orders are permissible.
a. Rule 14 (c) (1) and punitive sanctions. Rule 14 (a) of the Massachusetts Rules of Criminal Procedure, as appearing in 442 Mass. 1518 (2004), governs procedures for pretrial discovery in criminal actions. The rule establishes automatic mandatory discovery for the defendant and reciprocal discovery for the Commonwealth. The rule’s requirements for such discovery have the force and effect of a court order. Mass. R. Crim. P. 14 (a) (1) (C). In addition, the rules give judges the discretion to alter or amend discovery orders as the interests of justice require, and to order additional discovery not otherwise required
We have not previously been called on to determine whether rule 14 (c) (1) permits the imposition of punitive monetary sanctions.
Although the validity of punitive fines for rule 14 discovery violations is a matter of first impression, we have discussed the prevailing purpose of judicial sanctions for discovery violations in a variety of contexts. See, e.g., Commonwealth v. Felder, 455 Mass. 359, 367 (2009) (additional sanctions against Commonwealth under rule 14 [c] [1], in the form of jury instruction, for alleged untimely disclosure of photographs not appropriate where Commonwealth was not permitted to admit photographs and any potential prejudice to defendant thereby mitigated); Commonwealth v. Gonzalez, 437 Mass. 276, 279-280 (2002), cert, denied, 538 U.S. 962 (2003) (reversing trial judge’s order under rule 14 [c] excluding Commonwealth’s evidence of school zone measurements and drug analysis as sanction for delayed disclosure, where no showing of prejudice and less severe and more appropriate remedy of continuance available); Commonwealth v. Reynolds, 429 Mass. 388, 399-400 (1999) (judge’s preclusion of defendant’s evidence under rule 14 [c] [2] was error where Commonwealth was not significantly prejudiced by late disclosure and there were reasonable alternative means of
What emerges from these and other cases are two principles that we conclude govern the sanctions provisions of rule 14. First, sanctions are remedial in nature. Second, sanctions should be tailored appropriately to cure any prejudice resulting from a party’s noncompliance and to ensure a fair trial. These principles are similar to those that we have applied in other contexts where police or prosecutorial misconduct has been established. See, e.g., Commonwealth v. Mason, 453 Mass. 873, 877 (2009) (even in face of egregious police misconduct, “we have never dismissed charges in such circumstances in the absence of prejudice”); Commonwealth v. Hernandez, 421 Mass. 272, 277-278 (1995), quoting Commonwealth v. Cronk, 396 Mass. 194, 201 (1985) (whether sanction of dismissal appropriate requires assessment whether prosecutor’s refusal to disclose information during discovery “caused such irreparable prejudice that the defendant could not receive a fair trial if the complaint were reinstated”); Commonwealth v. Hine, 393 Mass. 564, 570, 573 (1984) (motion to dismiss for police forgery of Miranda waiver properly denied because “[o]ur emphasis has always been that any remedy should be tailored to cure the prejudice to the defendant”).
Remedial sanctions may not always be adequate to ensure the “absolute necessity for integrity in law enforcement”; nevertheless, judicial responses in the individual cases “should be limited to truly remedial, and not punitive measures.” Commonwealth v. Mason, supra at 878, quoting Commonwealth v. Hine, supra at 573. See Commonwealth v. Hernandez, supra at 277-279; Commonwealth v. King, 400 Mass. 283, 290-292 (1987). There are, of course, other available avenues, not at issue here, to
Consistent with our jurisprudence, and as “final arbiter of what the rule means and permits,” Commonwealth v. Durham, 446 Mass. 212, 221, cert, denied, 549 U.S. 855 (2006), we conclude that rule 14 (c) (1) is properly read to permit a judge to enter a broad range of orders in response to a failure to comply with discovery orders, but that a judge is 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. We decline to interpret rule 14 (c) (1) to authorize monetary penalties imposed for punitive rather than remedial purposes.
In this case, the judge imposed a punitive monetary sanction. The judge specifically found that the violations of the discovery orders he concluded the Commonwealth had committed “were not sufficiently egregious or prejudicial to warrant dismissal or suppression of the evidence,” and therefore imposed $25,000 in monetary sanctions, in addition to fees and costs incurred by each defense attorney. Illustrating his punitive focus, the judge wrote, “Such a sanction should communicate to the Commonwealth, the state police and all police departments that a wilful and intentional violation of a valid court order will not be permitted, nor tolerated by this Court.”
b. The Commonwealth’s alleged discovery violations. We next analyze the propriety of the judge’s pecuniary sanction for “the expenses of each defense attorney in litigating their motions for discovery and sanctions.” While the sanction is remedial in nature, the propriety of its imposition depends on the correctness of the judge’s findings of violations. Specifically, the judge found that the Commonwealth did not maintain the status quo of the evidence and intentionally disregarded court orders in three separate instances. We examine each in turn.
The judge first found that the Commonwealth violated his discovery orders when it “conducted DNA swabbing of firearm evidence on September 10, 2008.” The evidence established that the pistol was swabbed for DNA residue shortly after it was logged in with a DNA technician at 9:43 a.m. on September 10, 2008. At this time, the judge’s initial order and the 10 a.m. order may still have been in effect (although they were stayed minutes later). However, no language in either order directed the Commonwealth to halt the testing of evidence already in the laboratory for that purpose. There was no violation.
The judge found the third violation when the Commonwealth “failed to produce the firearm and marijuana to this Court by 10 a.m. on September 10, 2008 for inspection.” The evidence was that Trooper Briody arrived, in uniform, at District Court with the marijuana before 10 a.m. While it is correct that the Commonwealth did not produce the pistol, bullets, magazine clip, or plastic bags in court, the judge’s 10 a.m. order was no longer operative after the single justice’s oral stay at 9:50 a.m. The defendants argue that by administering tests on the pistol a mere fifteen minutes before the pistol was due in court, the Commonwealth evinced its true intent to obstruct court orders. While it strains the imagination to suppose that the evidence could have been rushed from the laboratory in Maynard to Cambridge in just fifteen minutes, it is not our role to engage in conjecture. The fact is that the judge’s 10 a.m. order that the pistol be produced had been stayed, obviating any violation that might otherwise have occurred in the absence of the stay.
c. Ex parte procedures. The record reflects an aura of confusion surrounding these discovery orders, leading to the subsequent sanctions proceedings. This confusion is a result, in part, of the judge’s improvident decision to hold the motion hearing ex parte.
We have declined to follow the practice of some jurisdictions in imposing a blanket proscription on ex parte motions for discovery, see Commonwealth v. Mitchell, 444 Mass. 786, 793-794 (2005) (Mitchell). But after the matter was heard in the District Court, we carefully delineated a limited range of circumstances where a judge may exercise discretion to hear such
A motion may be made ex parte only in “exceptional circumstances.” Mitchell, supra at 793. In the Mitchell case, we held that a defendant could make a motion ex parte to compel pretrial production of documents only (1) if the basis of the motion would reveal incriminating information, which the prosecution would otherwise not be entitled to receive; or (2) when advance notice of a request for a summons would likely result in the destruction or alteration of the documents themselves.
Additionally, albeit in the context of Mass. R. Crim. P. 17 (a) (2), 378 Mass. 885 (1979), rather than rule 14, we concluded, in the Mitchell case, that the judge should seal or impound only as much of the defendant’s motion and affidavit as is absolutely necessary to protect the defendant’s interests, and then allow the Commonwealth to be heard on the defendant’s request for ex parte consideration. Id. Where the Commonwealth’s presence would vitiate the purpose of the motion entirely, the judge should have a stenographic record made of all ex parte proceedings. Mitchell, supra at 797-798.
This case is illustrative of the inherent risk of confusion that stems from ex parte discovery orders. The judge’s initial order required inspection of “all evidence” by defense counsel “prior to the transport of said evidence to any lab for testing.” However, not only had the pistol, and all other ballistic evidence, already been transported to State police crime laboratories, but the pistol had already been fingerprint tested and test-fired. Had the Commonwealth been given an opportunity to be heard on the motion, it could have corrected this misapprehension and forestalled later confusion. Moreover, the language of the initial order did not prohibit further evidence testing, but prohibited the “transport” of the evidence for testing.
3. Conclusion. The findings of the judge as to all three violations of the discovery orders were clearly erroneous, and the imposition of the $25,000 punitive fine was an error of law. Therefore, the case is remanded to the county court for the entry of a judgment vacating the sanctions order against the Commonwealth in its entirety.
So ordered.
Rule 14 (c) (1) of the Massachusetts Rules of Criminal Procedure, as appearing in 442 Mass. 1518 (2004), provides: “For failure to comply with any discovery order issued or imposed pursuant to this rule, the court may make a further order for discovery, grant a continuance, or enter such other order as it deems just under the circumstances.”
The factual background is drawn from the evidence adduced at the evidentiary hearing on the defendants’ motion for sanctions.
Eventually, a grand jury returned indictments against all the defendants on firearm charges. The Commonwealth contends that the events surrounding the discovery litigation in the case precluded it from analyzing the marijuana evidence, and consequently it declined to bring any drug charges against Carney. A judge in the Superior Court dismissed all criminal charges against Farrow and Watson. The judge denied Carney’s motion to dismiss.
As a policy, Boston police seek ballistic reports to investigate whether seized guns are linked to other shootings in the city. The defendants lived in Boston.
The initial order was entered in Farrow’s case and read:
“The Commonwealth and law enforcement associated with the above-captioned matter are hereby ordered to make all evidence seized in this matter available for inspection to defense counsel and her designees . . . immediately and in any event prior to the transport of said evidence to any lab for testing.”
Trooper Briody had not been served with a copy of the initial order and was not otherwise aware of it before the telephone call.
The proposed order (10 a.m. order) was entered in Farrow’s and Watson’s cases and read:
“The Commonwealth and law enforcement associated with the above-captioned matters (including but not limited to the State Police) are hereby ordered to make all evidence seized in the investigation of this matter available for a meaningful opportunity to inspect by defense counsel and counsels’ designees . . . immediately, regardless of whether the evidence has left the state police barracks facility and has been transported to another state lab or state police facility (including but not limited to the state’s Maynard ballistics unit, the State Lab in Sudbury, or the drug storage unit in Foxborough).
“In particular, it is ordered that the State Police bring on September 10, 2008, by 10:00 A.M. to this Court (at Courtroom 13A [Motions Session]) all evidence seized in the investigation of this matter (including all alleged drugs and all alleged firearms evidence), so that defense counsel may have a meaningful opportunity to inspect said evidence.
“A ‘meaningful opportunity to inspect’ means that on request by the defense the evidence must be taken out of whatever State Police packaging it has been placed into since its seizure. So ordered.”
In her affidavit, Sullivan averred: “It is my understanding that the [pistol and ammunition] have yet to undergo processing by the Massachusetts State
A judge in the Superior Court (where the cases were then pending following the defendants’ indictments) granted a request to stay the prosecution of Carney, the only remaining defendant. See note 5, supra.
Rule 14 (c) (2) of the Massachusetts Rules of Criminal Procedure, as appearing in 442 Mass. 1518 (2004), also provides explicitly for the remedy of exclusion, stating, inter alia: “The court may in its discretion exclude evidence for noncompliance with a discovery order issued or imposed pursuant to this rule.”
Neither rule 14 (c) (1) nor the Reporters’ Notes offers guidance on the issue. Neither provides affirmative or negative instruction on the availability of monetary sanctions, punitive or otherwise. See Reporters’ Notes to Rule 14 (c) (1), Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1505 (LexisNexis 2010).
We need not decide in this case whether monetary sanctions ordered to coerce compliance with disregarded discovery obligations are within the array of remedial orders permissibly entered under rule 14 (c) (1). As a general matter, a judge may find a party to be in civil contempt by reason of the party’s failure to comply with a court order, and the judge may impose a daily fine on the party to coerce compliance with the order. See Commonwealth v. Rape Crisis Servs. of Greater Lowell, Inc., 416 Mass. 190, 192-193 (1993). “Unlike a criminal contempt which is punitive, to vindicate the authority of the court, a civil contempt order is intended to be remedial and for the benefit of an aggrieved party.” Labor Relations Comm’n v. Fall River Educators’ Ass’n, 382 Mass. 465, 475 (1981). See Mahoney v. Commonwealth, 415 Mass. 278, 284-285 (1993) (sanction remedial where party can “purge himself” by performing affirmative act required by court order). See also L.F. v. L.J., 71 Mass. App. Ct. 813, 823 (2008). Coercive sanctions “look to the future and are designed to aid the plaintiff by bringing a defiant party into compliance with the court order ... by setting forth in advance the penalties the court will impose if the party deviates from the path of obedience.” Labor Relations Comm’n v. Fall River Educators’ Ass’n, supra at 476, quoting Latrobe Steel Co. v. United Steelworkers Local 1537, 545 F.2d 1336, 1344 (3d Cir. 1976).
The defendants argue that Mass. R. Crim. P. 48, 378 Mass. 923 (1979), is an additional source of authority for the imposition of the $25,000 monetary sanction against the Commonwealth. The judge levied a fine against the “Commonwealth” for three purported violations by the “Commonwealth, i.e., the state police.” We decline to address the validity of the judge’s fine under Mass. R. Crim. P. 48 because that rule is applicable only to violations by individual attorneys. Mass. R. Crim. P. 48 (authorizing sanction for “wilful violation by counsel,” including “fine”). See Commonwealth v. Steinmeyer, 43 Mass. App. Ct. 185, 190 (1997). Rule 48, “recognizing the usually dominant role of attorneys rather than clients in procedural rule violations, permits the court to impose appropriate sanctions upon counsel.” Id. In this case, the judge criticized the conduct of the State police and by imputation the Commonwealth, not any individual assistant district attorney. Rule 48 is inapposite.
Commonwealth v. Mitchell, 444 Mass. 786 (2005), dealt with the validity of an ex parte motion for issuance of summonses directing pretrial production of documents pursuant to Mass. R. Crim. P. 17 (a) (2), 378 Mass. 885 (1979). “A judge hearing a rule 17 (a) (2) motion must evaluate whether the requirements [announced in Commonwealth v. Lampron, 441 Mass. 265 (2004)] of relevance, admissibility, necessity, and specificity have been met, or whether the defendant’s motion constitutes a disguised attempt to undermine rule 14 by launching an improper ‘fishing expedition.’ ” Commonwealth v. Mitchell, supra at 792.
The judge did not have the benefit of Commonwealth v. Shaughessy, 455
The judge did not deploy any of the procedural safeguards we endorsed in Mitchell, supra at 797-798. No stenographic record exists of the ex parte lobby conference where the judge heard argument on the motion.
As noted, the judge’s 10 a.m. order also does not contain any express language barring testing of the evidence.
We in no way indorse the Commonwealth’s argument that it may not be sanctioned for disobeying an unlawfully issued court order. This argument is unavailing. Litigants may not resort to self-help remedies and unilaterally flout court decrees. See Stow v. Marinelli, 352 Mass. 738, 744 (1967). “Even if erroneous, a court order must be obeyed, and until it is reversed by orderly review, it is to be respected.” Mohamad v. Kavlakian, 69 Mass. App. Ct. 261, 264 (2007), citing United States v. United Mine Workers, 330 U.S. 258, 294 (1947). Equally unavailing is the Commonwealth’s argument that the “principle of sovereign immunity protects the public treasury” from the issuance of monetary sanctions against it. As we have discussed in this opinion, rule 14 does not authorize the imposition of punitive fines as a sanction against the Commonwealth, but in the past and in another context, we have upheld both an assessment of attorney’s fees and a coercive civil penalty against the Commonwealth. Commonwealth v. One 1987 Ford Econoline Van, 413 Mass. 407, 414 (1992).