391 Mass. 301 (1984), Commonwealth v. Lam Hue To

Citation:391 Mass. 301, 461 N.E.2d 776
Party Name:COMMONWEALTH v. LAM HUE TO.
Case Date:February 29, 1984
Court:Supreme Judicial Court of Massachusetts
 
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391 Mass. 301 (1984)

461 N.E.2d 776

COMMONWEALTH

v.

LAM HUE TO.

Supreme Judicial Court of Massachusetts, Suffolk.

February 29, 1984

Argued Oct. 3, 1983.

[461 N.E.2d 778] Robert S. Sinsheimer, Asst. Dist. Atty. (John P. Corbett, Asst. Dist. Atty., with him), for the Commonwealth.

Juliane Balliro, Boston, for defendant.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

HENNESSEY, Chief Justice.

This case involves the propriety and effect of an order issued by a judge of the Superior Court pursuant to Mass.R.Crim.P. 14(c)(1), 378 Mass. 874 (1979), 1 purporting to dismiss a murder indictment after the commencement of a jury trial. The Commonwealth sought appellate review of the order by filing a petition with a single

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justice of this court under G.L. c. 211, § 3. The single justice reserved and reported the case without decision to the full court on four questions. We answer "Yes" to the second question and have an insufficient record to answer questions one, three and four. Accordingly, we direct the single justice to remand the case to the Superior Court for further hearings consistent with this opinion.

During trial, the defendant filed alternative motions for a continuance, a mistrial or a dismissal of the indictment. The trial judge held an evidentiary hearing on the motions, made findings and rulings, and allowed the motion to dismiss the indictment. We summarize the facts as found by the trial judge. On August 27, 1981, Jorge Martinez-Lorenzi, a fourteen year old boy (the victim), was involved in a dispute pitting himself, Wilberto Rosario, and Jaime Anayas against Lam Hue To and Dinh Li. During the altercation, the victim sustained a stab wound from which he later died. The fracas took place on or near the front steps of a residence at 43 Haverhill Street in Brockton. The first floor of this house was occupied by Rosario's uncle and aunt, Pablo and Paula Cruz. The Brockton police arrived shortly after the stabbing and Officer Arthur Sullivan took charge of the investigation.

Unable to speak Spanish, Officer Sullivan relied completely upon Pablo and Paula Cruz, who volunteered their services, for interpretation in interviewing bystanders. Based entirely upon the information filtered to him through Pablo and Paula Cruz--neither of whom had witnessed the stabbing or its antecedents--Sullivan concluded that the victim had been stabbed with a knife and that the defendant or Dinh Li had stabbed him.

Officer Sullivan arranged for Pablo Cruz, Rosario, and Anayas to go with him to police headquarters in his cruiser. While they were seated in the vehicle, but before Sullivan took the wheel, another officer, John Flynn, gave Sullivan a knife which Flynn said he had found in the bushes immediately to the right of the front steps at 43 Haverhill Street. The knife is a wooden-handled, steel-bladed boning knife. When Sullivan received it from Flynn, its blade bore

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brownish, reddish [461 N.E.2d 779] stains which Sullivan knew, or as a police officer should have known, resembled dried blood. At this juncture, Sullivan had been at the scene for approximately ten minutes. He knew that the stabbing weapon had not been located. Sullivan showed the knife to Cruz, who told him that his wife had been using it in the kitchen, had heard noises in the street (from the crowd that gathered immediately after the stabbing), had run out, neglecting to leave the knife behind, and had inadvertently dropped it.

Officer Sullivan placed the knife on the floor of his cruiser and proceeded with his passengers to police headquarters. Either en route or shortly after arriving, he learned that the police had arrested the defendant and Dinh Li. Sullivan assumed one of them had committed the stabbing, and thereafter ceased trying to determine who had committed the stabbing or even how it had been committed.

At headquarters, Officer Sullivan learned that Cruz was someone's uncle. He did not pursue the matter before going off duty. Sullivan tagged the knife and put it in his personal locker, where it remained until he removed it sometime during the week preceding the trial. He made no report concerning the knife's existence. It was never tested for latent fingerprints or blood.

The day after the incident, August 28, 1981, Sullivan returned to the Cruz house (the scene of the stabbing). By this time, the victim had died and the case had turned into a homicide. No one had found any weapon other than the knife which was now in Sullivan's locker. Cruz told Sullivan that an individual who wished not to become involved in the affair had found a knife (the second knife) with which the defendant was supposed to have killed the victim. Sullivan neither investigated this matter nor prepared any written report of any of his activities or information. Sullivan did not mention to any assistant district attorney the knife in his locker or Cruz's report of the second knife.

On September 28, 1981, Officer Sullivan testified before the Plymouth County grand jury. He was asked, "Did you find the knife?" He answered, "No," and did not qualify his

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answer or expand it. The grand jury indicted the defendant for murder. 2 No knife said to have been the murder weapon ever came to the attention of either the Brockton police department or the Plymouth County district attorney's office. On October 26, 1981, the district attorney agreed, in writing, to furnish the defendant with all exculpatory evidence available to the prosecution and to make available to him certain specified objects. The trial judge ruled that this agreement had the force of a court order. 3

As part of the normal pretrial preparation, the prosecutor interviewed Sullivan on January 7, 1982. During the conversation, Sullivan told the prosecutor about the knife in his locker and about the second knife. In response to the prosecutor's direction, Sullivan prepared a written report concerning the matter. Sullivan delivered the report to the prosecutor on January 11, 1982, the day the jury were empanelled and trial commenced.

Meanwhile, at 9:30 A.M. on January 8, 1982, the judge held a pretrial conference. During the conference, which lasted over thirty minutes, the judge discussed such matters as jury selection, interrogation and possible sequestration, interpreters, evidentiary stipulations, lists of anticipated witnesses, and the possibility of a witness's requiring immunity. The judge also specifically invited counsel to raise for preliminary consideration any special evidentiary [461 N.E.2d 780] problems. At several points, the judge explicitly asked counsel if "any other problems" existed. At no time during this conference did the prosecutor state the knowledge he then had concerning either of the knives. The trial judge found that the prosecutor

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possessed no valid reason for failing to tell defense counsel and the judge everything he then knew about the knives, and that this failure was a serious and inexcusable professional misjudgment.

Late in the afternoon of January 8, 1982, the prosecutor for the first time mentioned the knife to defense counsel. The prosecutor said the knife had been found after August 27 and that it had been found "imbedded in dirt." Both statements were incorrect. The prosecutor also told defense counsel he was satisfied the knife had nothing to do with the case, did not tell defense counsel that the knife belonged to Rosario's uncle and aunt, and did not tell him that it was stained when found. Relying on the prosecutor's statements, defense counsel concluded that the knife was not significant. The prosecutor said nothing at all about the second knife.

The judge found that the "content of [the prosecutor's] statement to [defense counsel], and equally important, its omissions, seriously prejudiced [defense counsel's] preparation and presentation of his client's defense." According to the judge, had the prosecutor fully disclosed his then knowledge concerning the knife and the second knife, defense counsel would have had an opportunity to apply for a continuance before trial...

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