Commw. v. Gonzales

• Decision Date: 01 July 2002
• Docket Number: SJC-08536
• Citation: 437 Mass. 276
• Parties: COMMONWEALTH vs. JORGE GONZALEZ. Docket No.:Massachusetts Supreme Court Suffolk
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

COMMONWEALTH

vs.

JORGE GONZALEZ.

Docket No.: SJC-08536

Massachusetts Supreme Court

Suffolk.

Argued May 7, 2002.

Decided: July 1, 2002.

Summary: Practice, Criminal, Interlocutory appeal, Discovery, Required finding, Double jeopardy. Constitutional Law, Double jeopardy.

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.

GREANEY, J.

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 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 counsel¹ 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 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.

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 in the case. The judge denied the motion, stating that he had not "found anything concerning the credibility of the officers."

The judge next proceeded to establish that the defendant had voluntarily waived his right to a jury trial. After that, he directed the prosecutor to call her first witness. The prosecutor stated she could not move for trial based on the allowance of the defendant's motion in limine. Defense counsel moved for a required finding of not guilty. The prosecutor objected to the procedure: "If your Honor wishes to dismiss the case for noncomplian[ce] with discovery I would suggest that would certainly be an appropriate action at this time. Having not moved for trial, I don't know how we can have a directed verdict." The judge then suggested that defense counsel call a witness, to avoid a dismissal without prejudice. The judge explained that, to rule on the motion for a required finding, and for jeopardy to attach, "there has to be a witness called and a witness sworn."

Over the prosecutor's objection, defense counsel called the defendant's daughter to testify. The daughter was sworn, stated her name and testified that the defendant is her father. Defense counsel then indicated that she had no further questions, and moved for a required finding of not guilty. The judge allowed the motion over the prosecutor's objection. The Commonwealth's petition under G. L. c. 211, 3, followed.

1. The order excluding the Commonwealth's evidence pertaining to the school zone measurements and drug analysis was erroneous. The order is, in essence, an inappropriate sanction for the Commonwealth's alleged failure to provide discovery to the defendant in keeping with the pretrial conference report. See Mass. R. Crim. P. 14 (c), 378 Mass. 874 (1979). See also Commonwealth v. Pope, 19 Mass. App. Ct. 627, 630 n.3 (1985) ("Agreements in written pretrial conference reports may be the equivalent of discovery orders," and, thus, subject to rule 14 [c]). No clear date for compliance, however, was specified in the report, as manifested by the "unagreed" endorsement entered next to the requested compliance date. In addition, the defendant repeated that, notwithstanding lack of discovery, he was ready for trial on the day scheduled for trial. He was aware of the analysis contained in the drug certificates and of the school zone measurements. The defendant's counsel never sought a continuance to make an "independent investigation." There is also no demonstration by the defendant of even a hint of prejudice to his case. Specifically, there is no showing that the drug analysis was wrong or that the measurements were inaccurate. Nor is there anything to indicate that the Commonwealth acted intentionally or in bad faith. See Commonwealth v. Donovan, 395 Mass. 20, 24 (1985), and cases cited. Certainly, less severe and more appropriate remedies were available, and should have been invoked. See Mass. R. Crim. P. 14 (c) (1). See also Commonwealth v. Dranka, 46 Mass. App. Ct. 38, 42 (1998), quoting Chappee v. Vose, 843 F.2d 25, 31 (1st Cir. 1988) (acknowledging that sanction of excluding evidence "should be reserved for 'hard core transgressions'")

The error was exacerbated by the judge's lightning rush to sanction the Commonwealth, and then immediately to call the case to trial, in an effort unjustly to deprive the Commonwealth of its right to pursue an interlocutory appeal pursuant to Mass. R. Crim. P. 15 (a) (2) and (b) (1), as appearing in 422 Mass. 1501 (1996) (providing aggrieved party ten days from "the issuance of notice of the order being appealed" to file application for leave to appeal "an order determining a motion to suppress evidence prior to trial"). See Commonwealth v. Anderson, 401 Mass. 133, 135 (1987) (applying rule to motion in limine and stating "if a motion to exclude all or most of the Commonwealth's incriminating evidence is allowed, and if, as a practical matter, that ruling [if permitted to stand] would terminate the prosecution, the Commonwealth may seek leave to appeal pursuant to [rule 15 (a) (2)]"). This action appears deliberate, as the judge undoubtedly was aware of Mass. R. Crim. P. 15 (c), as appearing in 422 Mass. 1501 (1996) ("Any motion the determination of which may be appealed pursuant to this rule shall...