16 Mass. App. Ct. 662 | Mass. App. Ct. | 1983
Ronald Reynolds and Jeffrey Purtee were convicted by a jury of six after a joint trial on complaints that alleged breaking and entering a building in the nighttime with intent to commit a felony (G. L. c. 266, § 16). In addi-
In Pittsfield, on March 16, 1982, a breaking and entering occurred in a package store, and bottles of liquor were stolen. The building in which the package store was located is owned by Daniel A. Ford, the first assistant district attorney for the Berkshire district. Because of Mr. Ford’s unique status as both a victim of a crime and a member of the office that would ordinarily prosecute the complaints, a joint motion was filed by the defendants requesting the appointment of a special prosecutor. In effect, the motion asked for the disqualification of the entire staff of the district attorney because of Mr. Ford’s involuntary connection with the matter. The motion was denied, and the defendants were prosecuted, at trial, by an assistant district attorney from the Berkshire district. There is nothing in the record that, demonstrates that Mr. Ford participated in the prosecution in any way, and the defendants do not so contend.
In the circumstances a conflict of interest that would necessitate the disqualification of the entire prosecutorial staff of the district attorney did not exist. The offenses alleged were crimes against property, and by their nature were not attacks upon the integrity of the district attorney’s office. Contrast Commonwealth v. Hawley, 380 Mass. 70,
Mr. Ford was the victim in this case, not the office of the district attorney. United States v. Heldt, 668 F.2d 1238, 1275 (D.C. Cir. 1981) (fact that defendants were charged with illegally entering the office of a member of the United States Attorney’s office does not require the disqualification of all the assistants from prosecuting the matter). The trial prosecutor knew of Mr. Ford’s connection with the cases. But there is nothing in this record that demonstrates that she overstepped her professional obligations, either because she knew Mr. Ford or because she was aware that he was the victim of the defendants’ alleged acts.
Judgments affirmed.
At the hearing on the motion, the prosecutor represented to the motion judge that the district attorney had instructed Mr. Ford not to have any contact with the cases.
In Commonwealth v. Hawley, supra, the defendants, in testimony at a hearing on their motions to withdraw pleas of guilty to manslaughter charges, alleged misconduct on the part of the district attorney and an assistant district attorney, among others. They were indicted for perjury as a result of this testimony. The defendants füed a motion for the appointment of a special prosecutor which was denied by the judge. The court did not count as error the denial of the motion but noted “that mode of proceeding might well have commended itself initially.” The court also noted that the prosecutor, a member of the district attorney’s staff, “should have been particularly wary of overzealousness in what amounted to a defense of the reputation of his colleagues.” That situation was not present in these cases.
The defendant Reynolds argues that duplicitous complaints were füed against him. No question was raised at trial about the complaints, and we note that it was the clerk’s office which drew up and issued the complaints, not the district attorney’s office.
The cases in Massachusetts which have discussed prosecutorial conflict of interest are not on point. In Pisa v. Commonwealth, 378 Mass. 724
The judge had wisely ordered the empanelment of spare jurors at the commencement of the trial.