18 Mass. App. Ct. 782 | Mass. App. Ct. | 1984
The defendant has appealed from his conviction on an indictment charging him with statutory rape. G. L. c. 265, § 23. Prior to trial, the defendant filed a motion to dismiss the indictment on the ground that the Commonwealth had faded to preserve potentially exculpatory evidence. The defendant identified the lost evidence as the contents of a rape evidence kit and as clothing worn by the victim at the time of the incident. A Superior Court judge, after a hearing, denied the motion and filed a memorandum of decision that contained findings of fact in regard to the motion. We summarize the facts that were found by the judge.
The victim reported the incident to the police on the day after it occurred. Detective Green of the Boston police was placed in charge of the investigation. He learned that the victim had been treated at Carney Hospital but was not informed that a rape evidence kit had been used. In previous cases he had received notice from the examining hospital if it had made use of, and was holding the results of, a rape evidence kit. Routine police procedure required the police to obtain the kit from the hospital only if an officer had accompanied the victim to the hospital or if he had received notice of use of the kit. Neither of those events occurred here, and Detective Green never became aware that a rape evidence kit had been used until after its contents had been destroyed. Approximately a year after the incident the prosecutor assigned to the case noted a reference to pubic hair combings in the victim’s hospital records. He requested the contents of the rape evidence kit from the hospital and was informed that the contents had been destroyed. He immediately notified defense counsel.
The victim kept possession of clothing which she wore at the time of the incident. She lost the clothing sometime before the trial. The police did not have possession of the clothing at any time. Routine police procedure did not require an investigating officer to obtain and preserve a rape victim’s clothing.
The defendant argues that the contents of the rape evidence kit and the clothing of the victim were material and that their subsequent loss was “intensely prejudicial” because testing could have excluded the defendant as the guilty party. We need
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Court established “a prosecutorial duty to disclose to the defense evidence in the prosecutor’s possession that is both material to the defendant’s guilt or innocence and exculpatory” (emphasis supplied). See Commonwealth v. Neal, 392 Mass. 1, 7-8 (1984). There is no evidence that the contents of the rape evidence kit or the victim’s clothing were ever in “the possession or control of the prosecutor or of any governmental official or other person whose actions could be imputed to the Commonwealth.” Commonwealth v. Mathews, 10 Mass. App. Ct. 888 (1980). See Commonwealth v. St. Germain, 381 Mass. 256, 261 n.8 (1980). Indeed, the evidence is to the contrary. Without a showing of possession or control by the Commonwealth, the defendant’s argument that the Commonwealth suppressed the evidence must fail. See Commonwealth v. Pisa, 372 Mass. 590, 596-597 (1977). Also see Mass.R.Crim.P. 14(a)(1)(c), 378 Mass. 874 (1979). We see no support in the record for the proposition urged by the defendant, that the hospital acted as agent for the Commonwealth. Compare Commonwealth v. Storella, 6 Mass. App. Ct. 310, 312-313 (1978).
The defendant argues that the Commonwealth was negligent in not establishing procedures which would prevent the loss of evidence. This ground for the dismissal of the indictment was not argued before the motion judge and, therefore, we will not consider it here. Commonwealth v. Mandeville, 386 Mass. 393, 408 (1982). Commonwealth v. Ely, 388 Mass. 69, 73 (1983). We note that both the United States Supreme Court and the Supreme Judicial Court have been reluctant to read the prosecutorial duty outlined in Brady v. Maryland, 373 U.S. at 87, “to extend, beyond the disclosure of evidence already in existence and in the prosecution’s control, to the gathering of evidence potentially helpful to the defense.” Commonwealth v. Neal, 392 Mass. at 8.
Finally, the defendant urges that this court require the Commonwealth to inform hospitals that when a rape evidence kit is
Judgment affirmed.