Commonwealth v. EliasCommonwealth v. Elias
Thе Commonwealth appeals from a judgment of a single justice of this court denying its petition pursuant to
Background. The defendant was indicted for possession with intent to distribute heroin, in violation of
The affidavit submitted in support of the search warrant application stated that, among other things, the police had conducted four controlled drug purchases from the defendant in March and April, 2010. The affidavit referred to five different confidential informants. The defendant filed a motion for disclosure of the identity of the informant involved in the alleged controlled purchases, referred to in the affidavit as CI#5. The defendant asserted that she was entitled to discover the identity of CI#5 because she intends to raise an entrapment defense at trial. In an affidavit submitted in support of her motion, the defendant stated that she believed that CI#5 is John Smith.
The judge who acted on the defendant’s motion did not allow it outright. Rather than require the Commonwealth to disclose the identity of CI#5, the judge ordered only that the Commonwealth confirm or deny whether CI#5 was Smith. The Commonwealth thereafter filed its
Commonwealth’s
“The govеrnment’s privilege not to disclose the identity of an informant has long been recognized in this Commonwealth” (citation omitted). Commonwealth v. Madigan,
“The threshold for a defendant to raise the entrapment issue is low . . . .” Commonwealth v. Madigan, supra at 707, quoting Commonwealth v. Tracey,
The Commonwealth takes an unnecessarily restrictive view of the cаse, drawing too fine a line between the controlled purchases involving CI#5 and the discovery of drugs in the defendant’s home. That the charges against the defendant arise from the discovery of drugs in her home rather than directly from the controlled purchases that prеceded the search does not mean, as the Commonwealth would have it, that the identity of CI#5 is irrelevant. The defendant has indicated that she plans to assert an entrapment defense, stemming from her alleged interactions with Smith — his persistently urging her to sell him drugs in the months prior tо the dates of the controlled purchases and his leaving the drugs at her home very shortly before the arrival of the police. To support such a defense, she needs to know whether Smith was acting at the direction of the government. That is, in its essence, what the judge’s order requires the Commonwealth to indicate. It was for this reason that the single justice stated that CI#5 is a percipient witness, not to the charged offense per se, but to the claim of entrapment, which the single justice aptly characterized as “a materiаl issue at trial.”
Finally, the Commonwealth’s arguments regarding the public policy considerations underlying protecting the identities of confidential informants are overstated on this record. Although the defendant’s motion sought the identity of CI#5, the trial judge ordered the Commonwealth оnly to confirm or deny that CI#5 was a particular individual. If CI#5 is not, the Commonwealth does not have to disclose the informant’s identity. The judge struck a balance and acted within his discretion in so doing. The single justice, in turn, did not abuse her discretion or otherwise err in denying the Commonwealth’s
Commonwealth’s claim concerning mootness. Aftеr this case was argued, it was brought to our attention by the Commonwealth that the information that is the subject of the judge’s order may have already been disclosed to the defendant. The Commonwealth suggests that this renders its appeal moot. We asked the parties to state their positions in writing on this point. Based on their submissions, we conclude that the Commonwealth has not properly
The defendant’s counsel, in responsе to our request, indicates that the trial prosecutor had made an “off the record” statement to him that “the trooper [who] filed the affidavit [in support of the search warrant] denied that CI#5 was the person referenced in the defendant’s affidavit”; that “the troоper reportedly said he was familiar with the person [who] was identified in the defendant’s affidavit”; that the trial prosecutor “reported that this response would not be made on the record or confirmed or denied in an affidavit”; and that, true to the trial proseсutor’s word, “the Commonwealth did not reduce any affirmation or denial to writing.” Nowhere in the multiple affidavits and other material supplied by the Commonwealth does the Commonwealth refute counsel’s recollection that any disclosure made to him was “off the reсord.” Indeed, in an unsworn letter filed with this court, the trial prosecutor does not even confirm that he communicated this information explicitly; he leaves open the distinct possibility that he merely implied the answer. He acknowledges that he “relayed information thаt the investigators had indicated that the named individual was not the informant described in the search warrant,” but he adds immediately thereafter that he does “not remember the words [he] used and cannot say whether [he] explicitly or implicitly conveyed that information.” Presumаbly because his statement to counsel was “off the record,” the trial prosecutor also indicates in his letter that he “never considered [his] conversation with defense counsel as providing a disclosure of informant information and it was [his] belief that defense сounsel did not consider it to be one either. We continued to litigate the issue.”
A statement made “off the record” in response to a judge’s order requiring disclosure of information does not constitute proper compliance with the order. An “off the record” statement in such circumstances is obviously not intended by the declarant to be attributed or published, and it cannot be relied on as an official statement of the Commonwealth’s position. See Commonwealth v. Tremblay,
In sum, nothing in the various affidavits and material furnished by the
Judgment affirmed.
Notes
A pseudonym.
The Commonwеalth states in its brief that it is “established” that a petition pursuant to
As the Commonwealth is aware, this interlocutory appeal is governed by S.J.C. Rule 2:21, as amended,
We hold only that the defendant has met her burden for purposes of learning whether CI#5 is John Smith. We express no view on the substantive merits of her entrapment defense.
The Commonwealth states in its brief that the single justice “mistakenly relied” on affidavits that the defendant “inappropriately included ... in her presentation to the single justice.” Those affidavits had been filed in the trial court in support of a different motion that the defendant had filed in that court challenging the search warrant affidavit. The single justice’s reference to them is of no moment. The defendant’s entitlement to know whether CI#5 was Smith does not stem from anything stated in those affidavits.
If the Commonwealth had wished to make a disclosure that complied with the judge’s order, while at the same time preserving the confidentiality of the informant information, it might have asked the judge for a protective order that would have kept its disclosure out of the public view. It did not do so. Making an “off the record” disclosure was not an adequate substitute.
The disclosure made by the trial prosecutor to counsel was also inadequate to constitute compliance with the judge’s order in another respect. Read in a light most charitable to the Commonwealth, the disclosure established only that the trooper and investigators had indicated that CI#5 was not the person identified by the defendant. That is different from saying that this was the Commonwealth’s official litigation position for purposes of the prosecution. In other words, the order required more than just
Similarly, the appellate prosecutor’s statement in her affidavit to this court — that she has since “spoke[n] with the case officer, and confirmed that the information that [the trial prosecutor] disclosed to defense counsel was correct and should not have been disclosed” — is not adequate to demonstrate compliance with the judge’s order.