437 Mass. 276 (2002), SJC-08536, Commonwealth v. Gonzalez

Docket Nº:SJC-08536.
Citation:437 Mass. 276, 771 N.E.2d 134
Case Date:July 01, 2002
Court:Supreme Judicial Court of Massachusetts

Page 276

437 Mass. 276 (2002)

771 N.E.2d 134




No. SJC-08536.

Supreme Judicial Court of Massachusetts, Suffolk.

July 1, 2002.

May 7, 2002.

PETITION filed in the Supreme Judicial Court for the county of Suffolk on August 11, 2000. The case was reported by Cordy, J.

Joseph M. Ditkoff, Assistant District Attorney (Dianna G. Goldenson with him) for the Commonwealth.

James G. Pepe, Jr. , for the defendant.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, & Sosman, JJ.


The defendant was charged on a complaint in the Boston Municipal Court Department with distribution of a class A controlled substance (heroin), G. L. c. 94C, § 32, and distribution of the substance within 1,000 feet of a school, G. L. c. 94C, § 32J. On the day scheduled for trial, a judge in the

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Boston Municipal Court: (a) excluded the Commonwealth's evidence concerning school zone measurements and drug analysis of the substances seized; and (b) conducted a brief jury-waived proceeding over the Commonwealth's objection, after which the judge entered a required finding of not guilty on the complaint. The Commonwealth appropriately sought relief from these determinations pursuant to G. L. c. 211, § 3. See Commonwealth v. Lowder, 432 Mass. 92, 93-94 (2000); Commonwealth v. Super, 431 Mass. 492, 495 n.5 (2000); Commonwealth v. Gordon, 410 Mass. 498, 499 (1991). A single justice of this court denied relief from the exclusion order, and then reserved and reported the case on three issues relating to the proceeding that resulted in the required finding of not guilty, including whether the defendant was placed in jeopardy. The Commonwealth appealed from the denial of the portion of its petition under G. L. c. 211, § 3, seeking relief from the exclusion order. We vacate the exclusion order and the required finding of not guilty. A judgment will enter in the county court on the Commonwealth's petition which embodies this relief and places the complaint before the Boston Municipal Court for further proceedings.

The background of the case is as follows. A pretrial conference was held on the complaint on May 1, 2000, and, as far as matters here, it was agreed, in a pretrial conference report, that the Commonwealth would provide the defendant's trial counsel 1 with "drug analysis" and "measurements; [identification] materials; [and] drug cert[tificates]." The compliance date on the pretrial conference report was listed as "5/22/00," after which was written "unagreed." Because the defendant was on probation at the time of his arrest, a probation surrender hearing was scheduled for June 8, 2000, with a trial on the merits of the complaint to proceed thereafter.

Before the probation surrender hearing commenced, counsel for both the Commonwealth and the defendant reported "ready for trial." During the probation surrender hearing, the Commonwealth offered police testimony concerning the events forming the basis for the defendant's arrest and drug certificates analyzing the substances seized at the scene of the alleged drug

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transaction. The judge found no probation violation, noting "three different stories coming from three different [police] officers;" one officer's distance from the defendant at the time of the alleged drug transaction; and a lack of testimony "that would connect [the drugs seized] to [the defendant]."

Thereafter, the judge spoke with counsel. Defense counsel informed the judge that the defendant would waive his right to a jury trial. The Commonwealth informed the judge that a different prosecutor would be trying the case.

That afternoon, the parties arrived for trial. The defendant's trial counsel filed a motion in limine seeking to exclude all evidence concerning the school zone measurements and drug analysis because this evidence had not been disclosed by the prosecution on or before May 22, 2000. The defendant claimed he would be prejudiced by the evidence because it deprived him of the opportunity to conduct an "independent investigation."

The prosecutor pointed out that the compliance date of May 22, 2000, had not been agreed on, but acknowledged that the Commonwealth was obligated to provide defense counsel with the requested evidence. The prosecutor stated that the requested evidence was available and offered to turn it over to defense counsel immediately. The judge allowed the motion in limine, rejecting the prosecutor's offer as not "good enough," and explained: "You can't have a situation on the day of trial, [where] discovery hasn't been turned over, especially this crucial, crucial type of discovery which goes to the heart of the school zone charge which is enhancing of a significant nature [if] this defendant's found guilty of the underlying charge . . . ." The judge added: "I've told your office, not you specifically, but your office time and time again and over and over until I'm talking like I'm hoarse that discovery in these matters is crucial. Discovery in every criminal case is crucial and [is] to be turned over in a timely manner."

The judge then asked the prosecutor if she was ready for trial. The prosecutor stated that, in light of the excluded evidence, the Commonwealth was not ready for trial. The judge stated that the case was going forward. He asked defense counsel whether the trial would be a jury trial. Defense counsel stated the trial would be jury waived.

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The prosecutor moved to recuse the judge on the ground that he had "already preestablished [at the probation surrender hearing] a finding as to the credibility of the officers" involved...

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