Com. v. Fossa, 94-P-2072

• Decision Date: 11 June 1996
• Docket Number: No. 94-P-2072,94-P-2072
• Citation: 666 N.E.2d 158,40 Mass.App.Ct. 563
• Parties: COMMONWEALTH v. Emilio FOSSA.
• Court: Appeals Court of Massachusetts

Page 158

666 N.E.2d 158

40 Mass.App.Ct. 563

COMMONWEALTH v. Emilio FOSSA.

No. 94-P-2072.

Appeals Court of Massachusetts Essex.

Argued Dec. 13, 1995.

Decided June 11, 1996.

Edward J. O'Reilly, Gloucester, for defendant.

Elin H. Graydon, Assistant District Attorney, for Commonwealth.

Before SMITH, LAURENCE and LENK, JJ.

LAURENCE, Justice.

Emilio Fossa appeals from a June, 1994, conviction by a Peabody District Court jury for operating under the influence of liquor, second offense, and from denial of his new trial motion. He argues that (a) his trial should not have proceeded over his objection because there had been late disclosure--on the morning of trial--of a police report containing the statements of two previously unidentified civilian eyewitnesses, who were present to testify; and (b) the trial judge should have allowed his new trial motion in which he claimed he had had insufficient time to prepare a defense because of the delayed discovery.

A pretrial conference report, executed by counsel almost three months before the trial date, stated that defense counsel had been provided with all police reports relating to the incident giving rise to this prosecution. ¹ The only document that was provided to Fossa's counsel prior to the day of trial was a one-page report of the arresting officer. ² That report stated that on February 3, 1994, an unidentified individual had alerted the officer to the approach of an erratically operated red car. The officer subsequently saw a red car proceeding errantly, which turned out to be driven by Fossa who (the officer concluded from his observations and tests) was intoxicated. No persons other than police officers were identified as prospective witnesses by the prosecution prior to trial.

On the morning of the scheduled jury trial, Fossa's counsel observed the arresting officer reading a multi-page document. He was told by the officer that it was a three-page police report relating to his client's arrest. Upon further inquiry of the assistant district attorney, he obtained a copy of the report, which he had not seen before. It identified two named civilian eyewitnesses who on February 3, 1994, had observed, and notified the arresting officer of, an oncoming erratic driver, ultimately proved to be Fossa. The report was based on conversations between the officer and the eyewitnesses a few days after the accident.

The assistant district attorney informed counsel that those two witnesses were present in court and would testify for the Commonwealth. When the case was called at first session by the assignment judge, defense counsel objected to going to trial because of the belated disclosure. The case was nonetheless sent out for immediate trial. ³

When the parties appeared before the trial judge, Fossa's counsel stated, "we're here over my objection.... I was given a three-page police report this morning. I had been given a one-page report out of Gloucester, and I was just given this report this morning. And I--(inaudible)--my objection, Judge ... I just wanted to put that into the record." The judge responded simply, "Very well. The case is over here for trial." The jury trial proceeded.

The two newly-identified witnesses testified (without further defense objection) that on the evening of February 3, 1994, they had seen a red car several times wander from lane to lane on a two-lane road and, after passing it, had informed a police officer whom they encountered further down the road of their experience. The arresting officer testified that the erratically-driven red car soon appeared as predicted. The officer himself then saw the driver (who was Fossa) cross and recross the solid double line several times at a very slow speed, with his window open, despite the cold, with loud music coming from inside the car. After stopping the car, the officer concluded, from his observations of Fossa's physical condition, behavior, and performance in field sobriety tests, that Fossa was intoxicated. A backup officer who arrived at the scene testified that he reached a similar conclusion, as did the officer who had booked Fossa at the police station. A videotape of the booking procedure was shown to the jury. Fossa testified in his own defense that he had had only two glasses of wine that evening, was having trouble with his contact lenses, and did not recall driving on the wrong side of the road or failing any sobriety tests. On this evidence the jury returned a guilty verdict.

Two weeks after trial, Fossa's counsel filed a new trial motion based upon the untimely disclosure of the three-page report. He contended that he would have examined and photographed the section of the road where the new witnesses observed Fossa's car, had he known of their existence, but had not prepared a defense with respect to that aspect of Fossa's operation of the car. He had not even had an opportunity to interview them between being sent out for trial and commencing trial. He asserted that with "proper preparation" he could have taken advantage of alleged discrepancies between their testimony and that of the arresting officer.

The judge could not remember what he had done when Fossa's counsel had made his objection at the start of trial (there was then no transcript or tape available) but thought he had indicated at the time that he would not "countermand" the assignment judge's recent ruling on the same issue (a recollection not supported by the trial transcript). He stated, however, that Fossa could not have been prejudiced by the situation in any event because he recalled a "very extensive and thorough cross-examination of both those witnesses ... and all areas were covered in that regard." Fossa's counsel countered that he "didn't think the issue should be what I did ... that's totally not relevant. I did the best I could ... but ... I know I could have done better.... I appreciate your saying that I did a good job, but it's just not right, Judge. I have to have another trial. I have to have an opportunity to defend my client better than I did...." Counsel did not specify in what respects he could have done better or could have achieved a better result with foreknowledge of the late report or the two civilian witnesses. The judge denied the new trial motion.

The proceedings in this matter do not reflect credit on any of the participants. The Commonwealth plainly violated its discovery obligation. Moreover, it never proffered any explanation for its failure to provide Fossa's counsel with the report identifying the two civilian eyewitnesses, ⁴ which was virtually contemporaneous with the much less informative one-page report and presumably known at the time to the assistant district attorney handling the pretrial conference. ⁵ Such a glaring procedural foul with respect to potentially critical evidence creates the distinct risk of invalidating what might otherwise be a meritorious prosecution, inexcusably inconveniencing all concerned in the process.

We are unable and unwilling, on the present record, see note 3, supra, to discern an abuse of discretion on the part of either the assignment judge or the trial judge in requiring an immediate trial over Fossa's objection. We are nonetheless troubled by the apparent failure (inferable from both the trial transcript and the Commonwealth's not arguing otherwise) of either judge to exercise the substantial discretion each possessed in the circumstances. See Mass.R.Crim.P. 14(c)(1), 378 Mass. 880 (1979). When confronted with the Commonwealth's failure to comply with its discovery obligations, "the judge may make a further order for discovery, grant a continuance, or enter such other order as he deems just under the circumstances," ibid., including exclusion or suppression of evidence, Mass.R.Crim.P. 14(c)(2), or, in egregious cases, "dismissal of the criminal charge." Commonwealth v. Cronk, 396 Mass. 194, 198, 484 N.E.2d 1330 (1985). See also Commonwealth v. Knight, 392 Mass. 192, 193-194, 465 N.E.2d 771 (1984) (when discretion is conferred by statute or rule upon the judge, it is error as matter of law to fail or refuse to exercise it).

We take judicial notice of the judges' legitimate "concern over the court calendar and the need to move cases along. However, 'concern for the avoidance of a congested [court] calendar must not come at the expense of justice.' Monahan v. Washburn, 400 Mass. 126, 129, 507 N.E.2d 1045 (1987)." Commonwealth v. Connelly, 418 Mass. 37, 39, 634 N.E.2d 103 (1994). See also Commonwealth v. Smith, 353 Mass. 442, 445, 232 N.E.2d 917 (1968). Moreover, the last-minute revelation in violation of discovery mandates here--the disclosure of previously unidentified witnesses--involved what a jury might regard as the most persuasive sort of witnesses, "neutral eyewitness[es] with excellent opportunity to observe and no apparent bias or motive to palter or mislead." Commonwealth v. Brookins, 33 Mass.App.Ct. 626, 635, 603 N.E.2d 916 (1992), S.C., 416 Mass. 97, 617 N.E.2d 621 (1993). In our view, these circumstances constituted justifiable reason for a short continuance--sua sponte even if not expressly requested--to afford defense counsel an opportunity to investigate the witnesses' anticipated stories and evaluate the potential impact of such evidence on defense strategies. See Commonwealth v. Faulkner, 418 Mass. 352, 364-365, 638 N.E.2d 1 (1994); Commonwealth v. Nester, 32 Mass.App.Ct. 983, 984, 594 N.E.2d 542 (1992); Commonwealth v. Pyne, 35 Mass.App.Ct. 36, 39-40, 616 N.E.2d 470 (1993).

A defendant assuredly has the burden of showing prejudicial consequences when seeking relief from disclosure delays by the Commonwealth. Commonwealth v. Gagliardi, 29 Mass.App.Ct. 225, 228, 559 N.E.2d 1234 (1990). Yet it would be wholly unrealistic to require defense counsel to demonstrate prejudice convincingly at the very onset of the trial. We should not expect even the criminal defense adept to accommodate instantly to surprise...