Com. v. Durham
| Decision Date | 14 March 2006 |
| Citation | 446 Mass. 212,843 N.E.2d 1035 |
| Parties | COMMONWEALTH v. Patrick John DURHAM. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James L. Sultan, Boston (Jonathan P. Harwell with him) for the defendant.
Paul B. Linn, Assistant District Attorney (David E. Meier, Assistant District Attorney, with him) for the Commonwealth.
The following submitted briefs for amici curiae:
Matthew Feinberg & Peter B. Krupp, Boston, for National Association of Criminal Defense Lawyers & another.
Stephanie Page & Brownlow M. Speer, Committee for Public Counsel Services, for Committee for Public Counsel Services.
Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.
In issue is the order of a Superior Court judge that directed the defendant, as part of the reciprocal discovery authorized by Mass. R.Crim. P. 14(a), 378 Mass. 874 (1979),1 to furnish the Commonwealth with "statements" of witnesses whom the Commonwealth intended to call at trial and which were in the possession, custody, or control of the defendant or his attorney. The order required that the "statements" were to be provided to the Commonwealth within seven days of defense counsel's receipt of a list of civilian witnesses whom the Commonwealth intended to call at trial. The order pertained to the defendant's indictment for murder in the first degree in connection with the brutal stabbing of a fourteen year old girl in July, 1981. (Although the defendant immediately was a suspect in the victim's death, he was not charged with her murder until February, 2000, after deoxyribonucleic acid [DNA] test results linked him to the crime.) The defendant, while decision was pending, entered a guilty plea to manslaughter and has been sentenced. We conclude that the appeal should be decided. We find the order lawful; the discovery required is permitted by the rule and violates no Federal or State constitutional right of the defendant.
The procedural background is as follows. In the parties' pretrial conference report, executed pursuant to Mass. R.Crim. P. 11, 378 Mass. 862 (1979), the defendant agreed to provide specified reciprocal discovery to the Commonwealth, including "[a]ny written or recorded statements of any witness, excluding the [d]efendant[,] in the possession, custody or control of [d]efense [c]ounsel or agents" that "the [d]efendant intends to use for the case in chief." The defendant later filed a motion for additional discovery, seeking the names of all the Commonwealth's prospective trial witnesses and an opportunity to inspect all documentary and physical evidence that the Commonwealth intended to offer at trial. A Superior Court judge allowed the motion, contingent on the defendant providing the same discovery to the Commonwealth, and limiting the obligation to such evidence that pertained to each party's case-in-chief.
Subsequently, the Commonwealth filed a motion for additional reciprocal discovery. In its motion, the Commonwealth sought, among other requests, the disclosure of any written or recorded statement of any prospective witness, including potential witnesses for the Commonwealth, that the defendant intended to offer at trial for any purpose, including for impeachment. A different Superior Court judge allowed the Commonwealth's motion in part, but reserved judgment on the above-specified request. Later, in a written memorandum of decision and order, the judge allowed the request.2 The judge took care to identify what materials were meant by the term "statements," explaining:
As can be seen, the judge's order did not limit the required disclosure to statements that the defendant could use for impeachment purposes. Rather, the order is broader, compelling the defendant to furnish statements that the Commonwealth also possibly could use in its case-in-chief or that the defendant might use in establishing a defense.
The defendant moved for reconsideration and for a protective order; both requests were denied. The judge, however, stayed the discovery order at the defendant's request to permit him to seek relief in the county court under G.L. c. 211, § 3. A single justice reserved and reported the case, without decision, to the full court. He directed the parties to file with the full court a written stipulation reflecting their understanding of the order.
The stipulation was reviewed and approved by the judge. The stipulation clarified that, under the order, (1) the defendant was only required to turn over statements of Commonwealth witnesses that he intended to use at trial, including statements to third parties unconnected to the defendant's case; (2) the defendant was not required to disclose statements of a witness for the Commonwealth unless the Commonwealth previously supplied discovery (in the form of grand jury minutes, police reports, witness statements or some other form) containing or describing that witness's statements; (3) to the extent that any statements of the Commonwealth's witnesses included information concerning the identity of any person whom discovery produced to date indicated that the Commonwealth was unaware of, and whom the defendant did not intend to call as a witness at trial, the defendant was not required to provide that portion of the statement to the Commonwealth; and (4) the Commonwealth was permitted to disclose to its witnesses prior to trial the substance of the witnesses' respective statements that were obtained by the defendant. The defendant challenged the order only insofar as it required him to turn over statements of intended witnesses for the Commonwealth (not intended witnesses for the defense).
1. Because the defendant's guilty plea and sentence resolves the indictment, the case is moot. See Commonwealth v. Pagan, 445 Mass. 315, 317, 837 N.E.2d 252 & n. 1 (2005). We nonetheless address the issue raised. The issue is fully briefed and raises matters of considerable importance to the pretrial preparation of criminal cases. Several amici have expressed their views. We have been advised that the issue is occurring on a frequent basis in the trial courts and uncertainty exists whether an order similar to the one in issue can be entered. See id. at 317, 837 N.E.2d 252; Delaney v. Commonwealth, 415 Mass. 490, 492, 614 N.E.2d 672 (1993); Commonwealth v. Yameen, 401 Mass. 331, 333, 516 N.E.2d 1149 (1987), cert. denied, 486 U.S. 1008, 108 S.Ct. 1735, 100 L.Ed.2d 198 (1988).
2. The defendant's arguments seeking to overturn the order were four: (a) the order exceeds the scope of rule 14(a)(3); (b) the order is barred by the work product exception to rule 14; (c) the order directs the production of discovery that is not allowed in the Federal Courts or by courts in most other States; and (d) the order is unworkable. We address each argument.
(a) After listing mandatory discovery for the defendant, rule 14(a)(2) outlines discretionary discovery for the defendant as follows:
It is further provided in rule 14(a)(3)(A) for reciprocal discovery:
"If the judge grants discovery or inspection to a defendant pursuant to subdivision (a)(2) of this rule, the judge may upon motion by the Commonwealth condition his order by requiring the defendant to permit the Commonwealth to discover, inspect, and copy any material and relevant evidence discoverable under subdivision (a)(2) which the defendant intends to use at trial, including the names, addresses, and statements of those persons whom the defendant intends to use as witnesses at trial" (emphasis added).
The defendant relied on the emphasized language to argue that the rule applies only to information about defense witnesses called during the defendant's case-in-chief, noting the obvious, that a prosecution witness is not the equivalent of a defense witness.
The ordered discovery is permitted by the rule, which cannot, as the defendant sought to do, be read in isolation. Under rule 14(a)(3)(A), the judge was authorized to order the defendant to disclose "any...
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