*1 Commonwealth v. Light.
Commonwealth vs. Johanna H. Plymouth. January 8, [1985] . February 1985. Hennessey, & C.J., Wilkins, Liacos, Nolan, O’Connor, Present: JJ. Practice, Criminal, evidence, Dismissal, prose- Conduct of Disclosure evidence, Law, prose- Conduct cutor. Due Process Disclosure of cutor. complaint arising a bench trial in a District Court on a during Before and cruiser, police of an automobile with a out of collision evidence in failing misconduct in to disclose prosecutor’s report stating chemist’s from chips the form of a State were not from the defendant’s motor vehicle chips cruiser similar, the defendant to a new bench did not warrant entitling while not disclose that where the circumstances did complaint irremediably or that the miscon- prejudiced the defendant’s in the sense that the knew the defendant was duct was intentional Liacos, J., dissenting. results. entitled test [114-115] Complaint Division received and sworn to in the Plymouth on December 1982. of the District Court Department Division, a session of the Wareham On to the Shea, Edward J. heard J. to dismiss was own initiative transferred Judicial Court on its The Supreme Court. the case from Snell, the Com- Robert P. Assistant District Attorney, monwealth. D. Rotondi the defendant.
Charles material, excul- The Commonwealth withheld J. Wilkins, her bench from the defendant before during evidence patory on a charged Court. She was District trial in Plymouth with a colliding after away, knowingly going name, residence, vehicle, known her without making motor 90, § 24. G. L. c. number of her vehicle. and the registration collision on with an alleged arose connection The charge vehicle operated by between motor November Mass. 112 Marshfield, owned the town of defendant and a cruiser *2 police before the District Court a in that town. Well on way parked 13,1983, the Marshfield department bench trial on April a chemist with the Massachusetts had received a from report from the of Public that Safety stating chips Department motor vehicle from the defendant’s cruiser chips not similar. This evidence one of its (including bumpers) time of trial and had was known to the at the police prosecutor a officer her been denied to the defendant by despite trial. The who oral before proceeded pro request for the disclosure of excul- se at her bench did not move not evidence. The results of the test were paint sample patory fact, at trial. The bench trial knew of the judge introduced results, but not the test. The bench trial paint sample found the defendant judge guilty.
The defendant session of the Wareham appealed jury Court, where, counsel, District she moved now represented to dismiss the After a on December complaint. hearing 1983, a allowed the on two one of motion judge grounds, which was the evidence.1 The Com- withholding exculpatory monwealth and we transferred the to this appealed, court on our own motion.
The Commonwealth that under v. Common Lydon argues wealth, denied, 381 Mass. cert. U.S. 1065 1The the ground insufficiency other for allowance of the motion was guilty finding. the evidence at the bench trial to sustain a At the time the allowed, arguably to whether a question open dismiss was at a bench constitutionally permissible guilty retrial was where trial had been on insufficient evidence to warrant a conviction. Com based Commonwealth, Lydon U.S. 1065 pare 381 Mass. Court, Lydon v. Boston Mun. (1980) (retrial F.2d 1 permissible) However, (1st 1982) (retrial barred). in after allowance April, Cir. dismiss, United of the defendant’s motion to Court of the Supreme Mun. decision cited above. Boston States reversed Court Lydon, Court ground allowing U.S. This the motion not, therefore, whether dismissal. We do not know support dismiss does if dismissed the judge jury in the trial session would have material, evidence. ground the sole were the failure to disclose rulings or findings He made no of fact of law.
Commonwealth v. (1980), the sole prosecutorial misconduct at the bench trial level is a retrial in the District Court session. jury instances, In some should be dismissed because of others, misconduct. In one, of which this case is a defendant is entitled to be from the only protected prosecutor’s trial, which, case, new by having should be at the bench trial level. In case, the circumstances of this a retrial at the trial level would not adequately protect defendant’s rights.
We have no doubt that the evidence was material and excul and that it was patory, See withholding Common prejudicial. wealth v. Lam Hue (1984); Common *3 Liebman, 483, wealth v. 388 Mass. (1983); 487-488 Common Germain, wealth v. St. 381 Mass. 261 & nn. 6 & 7 (1980). The as are held to the same police, acting prosecutors, standard the disclosure of prosecutorial concerning exculpatory evidence as are lawyer Commonwealth v. Red prosecutors. 382 Mass. ding, (1980). See Commonwealth v. Lam To, Hue at 311. Because the defendant supra requested material, was denied evidence known to the exculpatory police, which well have ended the might case with a of not essential fairness entitles the guilty, defendant at least to another trial, bench if she wishes it. The is whether remaining question she is entitled to the dismissal of the complaint.
Where
misconduct constitutes a deliberate and
prosecutorial
intentional
of constitutional
or where the
undermining
rights
effect of the misconduct cannot be remedied
prejudicial
trial,
a new
the drastic
granting
dismissal of
Cinelli,
be
See Commonwealth v.
may
389 Mass.
appropriate.
(1983);
was in the that the intentional sense knew the defendant results. entitled test See Commonwealth Lam Hue at 311-312. supra
The order the motion to dismiss the allowing reversed. The case is remanded to the Court Wareham District session, where an order is to be entered jury denying motion. The defendant shall have the within If following option: of the she moves for remand thirty days entry rescript case District Court for a bench Plymouth filed, shall be motion allowed. If no such motion is so case shall stand trial in the District Court session. This affidavit, court entertain a will an filed supported under R. (d), Mass. Crim. (1979), P. of the defendant’s costs on this payment reason- able fees. attorney’s
So ordered. *4 I J. agree Liacos, the court’s (dissenting). generally discussion of the raised this How- legal principles appeal. ever, I in cannot the court’s conclusion that an join to give to the defendant for a new opportunity bench trial suffices as a offset to the misconduct of the law enforcement view, In authorities. may misconduct was to it within the rule egregious sufficiently bring prophylactic 438, in enunciated Commonwealth v. 373 Manning, Mass. 444 (1977). think, It is I two briefly out important, separate that have forth parallel been set in our legal principles opinions in cases In this I can make clear way type. my precise with the of the court. point disagreement opinion First, where the fails and to disclose prosecutor material and the defendant trial evidence is new prejudiced,
116
Commonwealth v. not be allowed be but a motion to dismiss should may required, harm to the defendant’s absent a of irremediable op showing v. Lam Hue to obtain a fair trial. Commonwealth portunity 301, To, (1984). 314 Double Mass. jeopardy principles 391 retrial, declared, been absent a do not bar a if a mistrial has a defendant into moving effort to “goad” prosecutorial 667, (1982). Com v. 456 U.S. 676 Kennedy, mistrial. Oregon at 311. Cf. Commonwealth monwealth v. Lam Hue supra Jackson, 749, As stated in Com (1984). Mass. 753 we 391 Cinelli, Mass. monwealth v. “[ajbsent or at least a (1983),
U.S. egregious of dismissal serious threat of the remedy infringes prejudice, in on the interest bringing guilty persons too severely public Thus, in the absence of egregi to justice” (emphasis supplied). misconduct, not unless dismissal of the is warranted ous charges he has defendant the court that prejudice persuades trial, or that double suffered a fair jeopardy principles precludes a new trial. bar
An alternative and requiring separate principle Manning, found in Commonwealth v. Thus, misconduct is egregi- where deliberate, intentional, ous, considerations “[pjrophylactic Id. at 444. See Common- . . . assume importance paramount Carlson, where (1983), Ct. wealth v. 17 Mass. App. the distinct nature of this Court recognized princi- Jackson, we have stated Commonwealth Additionally, ple. sanction of dismissal: (1984), Mass. as to the was not to rectify of the sanction Manning] “The purpose [in none; the there had been done to the because harm from such deliberate agents was to discourage government point to a fair the defendant’s right to subvert and insidious attempts trial . . . .” withheld court that the evidence I with the
While agree material and the Marshfield exculpatory, *5 trial, I at the bench rely it was failure to disclose prejudicial view my of Manning instead on the aspects prophylactic In of the charges. is entitled to a dismissal that this defendant (1) of record: I on these facts Department so doing, rely Mass. 112 Public chemist’s shows that the found on Safety report cruiser was “not similar” to the on the defend- vehicle; (2) ant’s knew this three months prior trial; (3) refused the police arbitrarily defendant’s repeated, for the specific (4) chemist’s the identification requests report; evidence as to the defendant’s was not culpability strong; (5) the motion allowed as a judge basis of dismissal separate Commonwealth violated defendant’s with- “[t]he by evidence, which holding if would have produced of not required finding guilty.” view,
In the conduct here was my It egregious. appears to obtain a designed conviction which otherwise was most short, In defendant, this unlikely. se, acting suffered a pro another guilty, before the hearing judge, The time and appeal. she has been money forced to expend to defend a unnecessarily minor relatively misdemeanor com- $125, in a fine plaint, resulting is unconscionable. I do not believe her back to sending all begin over again or just Nor do I equitable. think this court to condone such ought conduct law enforcement officers. Justice for this and for future, others in the would be better served aby ruling that this court will not tolerate such behavior law enforce- ment officers. The should be dismissed.