Com. v. Carney

• Decision Date: 08 December 2010
• Docket Number: SJC-10648.
• Citation: 938 N.E.2d 866,458 Mass. 418
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. Kejaun T. CARNEY & others.

938 N.E.2d 866
458 Mass. 418

COMMONWEALTH
v.
Kejaun T. CARNEY & others.¹

SJC-10648.

Supreme Judicial Court of Massachusetts,
Suffolk.

Argued Sept. 13, 2010.
Decided Dec. 8, 2010.

938 N.E.2d 868

Bethany Stevens, Assistant District Attorney, for the Commonwealth.

Daniel Beck, Cambridge, for Kejaun T. Carney.

Present: MARSHALL, C.J., SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ. ²

CORDY, J.

458 Mass. 418

In this case, we are called on to determine the propriety of a judge's order imposing on the Commonwealth both a $25,000 punitive sanction and attorney's fees for what the judge concluded was a failure to comply with discovery orders issued pursuant to Mass. R.Crim. P. 14, as amended, 444 Mass. 1501 (2005). We conclude that sanctions imposed pursuant to Mass. R.Crim. P. 14(c)(1), as appearing in 442

458 Mass. 419

Mass. 1518 (2004), for the violation of discovery obligations are limited to remedial measures aimed at curing prejudice and ensuring a fair trial and, as such, may not include punitive monetary penalties.³ Pecuniary awards for the assessment of attorney's fees and other litigation costs incurred in redressing a discovery violation are, however, remedial and fall within the rule as we interpret it. See Commonwealth v. Lam Hue To, 391 Mass. 301, 310, 312, 461 N.E.2d 776 (1984). Because we further conclude that the Commonwealth did not violate any of the discovery orders at issue here, we vacate the sanctions order in its entirety.

1. Background.⁴ This case began as a routine firearm arrest. What followed was two years of litigation over discovery sanctions, including an eleven-day evidentiary hearing, arising principally out of the issuance of an ex parte discovery order.

938 N.E.2d 869

a. The arrest. On September 5, 2008, at approximately 1 a.m., the defendants Kejaun T. Carney, Kenny D. Farrow, and Ronald Watson (defendants) left the Western Front nightclub in Cambridge in a rented automobile. Members of the Boston police department and State police assigned to the youth violence strike force followed the vehicle onto Memorial Drive, and directed the driver to pull over for failure to remain within marked lanes. Four officers approached the vehicle and reported an odor of "fresh marijuana." The officers ordered the defendants out of the vehicle and searched the immediate passenger area. During this search, a Boston police detective observed the corner of a plastic bag jutting out from the moulding around the gearshift console. The detective lifted the console and removed the bag, which held a loaded .40 caliber pistol. The defendants were arrested and taken to the State police barracks located at Leverett Circle (Leverett Circle barracks) in Boston. A State trooper drove Carney separately. While removing Carney from the back seat, the trooper found a plastic bag containing four

458 Mass. 420

smaller baggies of what appeared to be marijuana. All the evidence was secured at the Leverett Circle barracks.

Later that morning, the defendants were arraigned in the Cambridge Division of the District Court Department (District Court) on firearm charges, and Carney was charged additionally with drug offenses.⁵ That afternoon, the pistol, its ammunition, and a magazine clip, as well as the plastic bag in which they were found, were taken to the State police crime scene services facility in Sudbury, where they were examined for fingerprint evidence. From there, the items were transported to the State police crime laboratory in Maynard for ballistics testing. On that same day, Trooper Stephen Walsh test-fired the pistol with a bullet from stock ammunition in the State police inventory to ascertain ballistic information requested by the Boston police department.⁶ The marijuana remained in an evidence locker at the Leverett Circle barracks.

b. The ex parte orders. Four days later, on September 9, Farrow's counsel filed an ex parte motion with the District Court, seeking an order directing the Commonwealth to provide an opportunity for immediate inspection of the "items seized in this matter." In the motion, Farrow's counsel argued that an assertion in the police report that officers could detect an odor of "fresh marijuana" from outside the vehicle was implausible given the small quantity seized and its multiple layers of plastic packaging. Farrow's counsel stressed that, in order to prepare a motion for suppression of the pistol—presumably on grounds that the officers lacked a sufficient basis for the search of the vehicle—and to rebut an anticipated argument from the Commonwealth that the drug's odor had dissipated, counsel for all three defendants pressingly needed to smell the seized marijuana. Farrow's counsel similarly argued that the judge should hear the motion ex parte and impound it thereafter.

938 N.E.2d 870, 458 Mass. 421

The judge met with the attorneys for all three defendants, ex parte, in his lobby. When the judge and the attorneys returned to open court, the judge informed the assistant district attorney that he had allowed a discovery motion ex parte. After noting an objection from the Commonwealth, the judge then indorsed the order (initial order). Although the ex parte motion was directed at obtaining access to the marijuana, the initial order required that defense counsel be given access to "all evidence seized in this matter" for inspection "immediately and in any event prior to the transport of said evidence to any lab for testing." ⁷

At approximately 12:45 p.m., the case was recalled, at which time Farrow's counsel reported to the judge that she had spoken over the telephone with Trooper Thomas Briody at the Leverett Circle barracks, who told her that he would not open the evidence bag containing the marijuana in compliance with the court order.⁸ She also informed the judge that the firearm evidence was at the crime laboratory and that the marijuana was to be sent to the laboratory the following day. The assistant district attorney stated that it was unclear what had been ordered and requested clarification in light of the Commonwealth's exclusion from the ex parte hearing.

At 2 p.m., in an open court hearing before the judge, defense counsel jointly submitted a proposed second order, requiring the Commonwealth to present all evidence for inspection by 10 a.m. the next day, September 10, in District Court, regardless of its present locus. The assistant district attorney objected, citing concerns over the possible contamination of evidence, and informed the judge of the Commonwealth's intent to petition for extraordinary relief from a single justice of the Supreme Judicial Court, pursuant to G.L. c. 211, § 3. The judge indorsed

458 Mass. 422

the defense counsels' proposed order (10 a.m. order),⁹ a copy of which was then sent by facsimile transmissions to Trooper Briody in Boston, and Trooper Walsh in Maynard. The order made no mention of testing. On September 10, at 8:30 a.m., the Commonwealth

938 N.E.2d 871

filed its petition for extraordinary relief with the single justice. At about that same time Trooper Walsh, having learned of the 10 a.m. order, voiced concerns to a superior officer that compliance with the order might cause contamination of the firearm evidence. At approximately 9 a.m., after a series of conversations, Major James M. Connolly, head of the State police forensics services group, authorized an expedited deoxyribonucleic acid (DNA) swab test of the pistol. The pistol was delivered to a technician, and logged into her custody, at 9:43 a.m. It was then swabbed for DNA residue. Meanwhile, at 9:41 a.m., Kristen L. Sullivan, the State police DNA unit supervisor, sent an affidavit (Sullivan affidavit) by facsimile transmission to the assistant district attorney for use in the single justice proceeding that addressed the Commonwealth's contamination concerns in technical detail. ¹⁰

At 9:50 a.m., the single justice orally stayed the judge's 10 a.m.

458 Mass. 423

order that all the evidence be produced that morning at District Court, and provided notice to the parties that he would issue a written order in the afternoon. The assistant district attorney then left a telephone message for Trooper Walsh informing him that the pistol (and related ballistics evidence) was no longer required in court that morning. With respect to the marijuana evidence, Trooper Briody arrived in District Court before 10 a.m. with the evidence sealed.

In Maynard, at 10:41 a.m., the pistol was returned to Trooper Walsh after its DNA swabbing. Around 11:30 a.m., after releasing Trooper Briody from court and instructing him not to perform any testing on the marijuana, the assistant district attorney again telephoned Trooper Walsh, leaving a message for him not to conduct any further testing on the pistol. Trooper Walsh, however, did not get this message until after he had returned from lunch and test-fired the pistol, this time with one of the bullets seized during the arrest. Trooper Walsh estimated that he finished his test-firing at approximately 1:30 p.m.

At 1:50 p.m., the single justice issued a written order that, inter alia, stayed the 10 a.m. order, instructed the Commonwealth to maintain "the status quo of the evidence," and directed all counsel to submit proposed written findings to the judge on the initial order. In light of the fact that the District Court judge had no opportunity to review and consider the Sullivan affidavit, the single justice also remanded the matter for a rehearing.

After the rehearing on September 11, the District Court judge issued an amended order that mandated inspection of specifically enumerated evidence, including the pistol, bullets, marijuana,

458 Mass. 424

and plastic bags, but that allowed the Commonwealth to designate the location of inspection, and required defense counsel or its agents to use "latex gloves, surgical masks, and other

938 N.E.2d 872

protective gear supplied by the Commonwealth."

After learning that the pistol had already been swabbed for DNA residue and test-fired...