Com. v. Doe

• Decision Date: 10 June 1992
• Citation: 412 Mass. 815,593 N.E.2d 237
• Parties: COMMONWEALTH v. John DOE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 237

593 N.E.2d 237

412 Mass. 815

COMMONWEALTH v. John DOE.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Feb. 3, 1992.

Decided June 10, 1992.

John Coffey, Asst. Dist. Atty., (Susan Underwood, Asst. Dist. Atty., with him), for Comm.

Bernard Grossberg, Boston, for defendant.

Before NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

NOLAN, Justice.

Prior to his trial on four indictments charging trafficking in cocaine, the defendant, believing that the Commonwealth reneged on an agreement to reduce the charges against him in return for his assistance to law enforcement officials, filed a motion for an order to compel the Commonwealth to adhere to its alleged agreement with him. The judge allowed the motion, holding that fairness required the Commonwealth to adhere to its agreement on which the defendant reasonably relied to his detriment. The Commonwealth then sought relief from the judge's order, pursuant to G.L. c. 211, § 3 (1990 ed.), from a single justice of this court who reserved and reported the matter to the full court. We agree with the Commonwealth's contention on appeal that the judge had no proper legal basis to reduce the charges against the defendant over the Commonwealth's objection. We therefore vacate the judge's order.

The Suffolk County grand jury returned four indictments against the defendant, three charging him with trafficking in cocaine in excess of one hundred grams, each of which carries a minimum mandatory sentence of ten years, and one charging him with trafficking in cocaine in excess of fourteen grams, which carries a minimum mandatory sentence of three years. ¹ These indictments arose out of three separate sales of cocaine to State police Trooper Paul Damery, who was acting in an undercover capacity, as well as an inventory search of the defendant's automobile at the time of his arrest. After learning from the arresting officer that the defendant was interested in cooperating with the police, Trooper Damery and other police officers initiated a series of meetings with the defendant during which time the defendant considered whether to cooperate with police. The defendant eventually agreed to assist the police after he retained counsel and counsel indicated that he had no objections to Trooper Damery's contacts with the defendant. The defendant then attempted to assist law enforcement officials over the next few months, during which Damery visited the defendant in jail several times. The defendant made more than fifty telephone calls to Damery during this time.

From his initial conversations with Damery, the defendant "consistently" pressed to get some specific promise about what benefits he would derive from his cooperation with the police. Damery always responded by stating that the defendant would only "get credit for" information that led to something productive, such as arrests or the seizure of narcotics. While Damery consistently stated that he was not authorized to bargain with the defendant, Damery assured the defendant that, if he provided productive information, Damery would confer with the assistant district attorney and the defendant's counsel to negotiate the credit which the defendant would receive in return for his cooperation.

Over the course of several months, the defendant gave information to Damery about alleged cocaine dealers and attempted to arrange meetings for Damery with cocaine dealers. None of the information provided by the defendant, however, proved to be productive, and the meetings arranged by the defendant were unsuccessful. According to the defendant, drug dealers were chary of doing business with him while he was incarcerated. Although his bail was reduced to $50,000 at his arraignment, the defendant was still unable to secure bail.

The defendant eventually persuaded his former roommate to help him by assisting Trooper Damery. According to Trooper Damery's testimony, the special arrangement with the defendant's roommate was geared toward addressing the defendant's bail situation. The defendant believed that he could be more productive, and thereby increase his chances of reducing his sentences, if his bail were reduced and he was able to get out of jail and return to the streets where he would be better able to set up meetings for Damery with drug dealers. ² The defendant's roommate eventually provided information that resulted in the arrest of an individual for trafficking in cocaine, three counts of trafficking over fourteen grams and two counts of trafficking over twenty-eight grams. The Commonwealth apparently never took steps, however, to reduce the defendant's bail. His roommate's information was the only productive assistance that the defendant was able to provide to the Commonwealth.

In allowing the defendant's motion to compel the Commonwealth to adhere to its agreement with the defendant, the judge stated that the Commonwealth's position in this case was that the defendant expected only a bail reduction in return for his productive assistance. The judge concluded that this argument was "specious" because the defendant's bail had already been reduced at his arraignment without the intervention of the Commonwealth. The judge concluded instead that the defendant was clearly seeking a reduction only in the severity of the penalty that he was facing. The judge then found, in the attendant circumstances and the conduct of the parties, that they impliedly contracted that the defendant would get his charges reduced if he supplied any information which led to the arrest of a drug dealer or the seizure of narcotics, and the judge concluded that the defendant's provision of productive information through his roommate was encompassed within this implied agreement. As a result, the judge reduced the defendant's indictments so that instead of ten-year mandatory sentences he would be subject to five-year mandatory sentences, which the judge believed was "the only pragmatic way to remedy the breach of the Commonwealth's implied promise to this defendant." ³

Absent some legal basis for doing so, a judge may not reduce the charges against a defendant over the Commonwealth's objection. Commonwealth v. Gordon, 410 Mass. 498, 503, 574 N.E.2d 974 (1991). Enforcement of a prosecutor's promise which, on principles of contract law, would be an enforceable contract is one legal basis upon which such relief may be granted. See Commonwealth v. Santiago, 394 Mass. 25, 28, 474 N.E.2d 154 (1985); Commonwealth v. Smith, 384 Mass. 519, 521-522, 427 N.E.2d 739 (1981). Even when there is no enforceable obligation to enforce a prosecutor's promise, we would consider, on the grounds of fairness, whether a defendant's reasonable reliance to his detriment on statements of the prosecutor's representatives obliges the Commonwealth to adhere to the defendant's expectations. See Commonwealth v. Mr. M., 409 Mass. 538, 543-544, 566 N.E.2d 1125 (1991); Commonwealth v. Smith, supra 384 Mass. at 522, 427 N.E.2d 739. "The touchstone for determining whether a defendant has been improperly denied the advantages he expected ... is whether that defendant has reasonable grounds for reliance on his interpretation of the prosecutor's promise, and whether the defendant in fact relied to his detriment on that promise." Commonwealth v. Santiago, supra 394 Mass. at 28, 474 N.E.2d 154. While there is no dispute in this case concerning whether the defendant suffered any detriment, the parties differ over whether the defendant's expectations were reasonable.

In reviewing a judge's determination as to a pretrial motion, such as a motion to suppress or the motion in this case, the judge's subsidiary findings of fact supporting such determination will not be disturbed absent clear error. Commonwealth v. Dunn, 407 Mass. 798, 804, 556 N.E.2d 30 (1990). "Moreover, we accord substantial deference to the judge's ultimate findings." Id. at 805, 556 N.E.2d 30. Nevertheless, we conclude that several of the judge's findings were clearly erroneous and that the record does not support his conclusion that the defendant's expectation, that his roommate's productive information would result in a reduction of the charges, was reasonable.

The judge's finding that the defendant did not desire a reduction in his bail is clearly erroneous. The judge mischaracterized the Commonwealth's true position in this case, which was that only the defendant's efforts...