Com. v. Gallarelli

• Decision Date: 12 January 1987
• Parties: COMMONWEALTH v. James J. GALLARELLI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 516

502 N.E.2d 516

399 Mass. 17

COMMONWEALTH v. James J. GALLARELLI.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Sept. 11, 1986.

Decided Jan. 12, 1987.

Edward F. Haber, Boston, for defendant.

Laura Callahan, Asst. Dist. Atty., for Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and O'CONNOR, JJ.

LIACOS, Justice.

After a jury trial in October, 1984, the defendant was convicted of assault and battery by means of a dangerous weapon, a knife. He was sentenced to the Massachusetts Correctional Institution at Walpole (now Cedar Junction) for a term of eight to ten years. ¹ He appeals both his conviction and the denial of his motion for postconviction relief. In the view we take of the case, we need consider only the appeal from the denial of the defendant's motion for a new trial.

The record reveals the following facts. At midnight on Friday, December 10, 1982, Stephen W. Travis and three of his friends were among a throng of 800 then patronizing a Boston nightclub. While drinking near a dance floor, Travis noticed that a fistfight had broken out among three men nearby. Moments later, Travis felt someone bump him from behind. Turning, Travis saw the defendant and pushed him away. The defendant threw a punch at Travis, and Travis responded in kind, knocking the defendant to his knees. From that position, the defendant lunged upward with his hand toward Travis's stomach. Travis saw blood staining his shirt. The defendant disappeared quickly into the crowd, as Travis left the club. Boston police officers Richard Clancy and Charles Hubert arrived at the nightclub within five minutes of the incident. One of Travis's friends led the officers to the defendant, who was still inside. The defendant sought to elude apprehension. After a chase within the club, he was apprehended, and, after a violent struggle, Officer Clancy subdued him and placed him under arrest. ² He was searched immediately. Officer Clancy found a knife with a four-inch blade in the defendant's trousers, at the small of his back. Officer Hubert took control of the knife.

Prior to trial, the prosecution and the defense submitted a pretrial conference report as required by Mass.R.Crim.P 11(a)(2)(A), 378 Mass. 862 (1979). At trial, the Commonwealth relied primarily on the eyewitness testimony of the victim and his friends. Officer Clancy also testified, but Officer Hubert did not testify because he had died. Officer Clancy's testimony revealed that the Commonwealth was unable to produce the knife which was taken from the defendant at the time of his arrest. ³ The defendant moved to strike all testimony concerning the knife because the prosecution had failed to produce it in court. The defendant also moved for dismissal on the ground that failure to produce the knife constituted prosecutorial suppression of exculpatory evidence. Both motions were denied. The defense rested without calling witnesses.

After his conviction, the defendant engaged new counsel who, in preparation for this appeal, telephoned the Boston police crime laboratory and learned that a written report existed showing that a test for the presence of blood had been conducted on the knife shortly after it was seized. The report showed no trace of blood on the defendant's knife. The defendant then moved for postconviction relief under Mass.R.Crim.P. 30(a), 378 Mass. 900 (1979). The grounds stated were, inter alia, that the laboratory report was exculpatory evidence suppressed by the prosecution in violation of the defendant's Federal and State constitutional rights. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Commonwealth v. Ellison, 376 Mass. 1, 379 N.E.2d 560 (1978). The motion also alleged that the laboratory report constituted new evidence warranting a new trial. This motion was heard and denied by the trial judge.

On appeal, we consider only the defendant's claim that a new trial is required because the laboratory report showing no trace of blood on the defendant's knife was exculpatory evidence which the Commonwealth suppressed in violation of his constitutional rights. We are persuaded that this contention is dispositive of the case, and we order a new trial.

In the pretrial conference report filed pursuant to Mass.R.Crim.P. 11(a)(2)(A), the Commonwealth agreed to furnish the defendant with the mandatory discovery guaranteed by Mass.Crim.P. 14(a)(1)(C), 378 Mass. 874 (1979), as to "any facts of an exculpatory nature within the possession, custody, or control of the prosecutor." Id. The Commonwealth further agreed to provide the defendant, as additional discovery, with "police reports" and "scientific reports." Under rule 11, pretrial agreements are binding on the parties and have the force of a court order. Commonwealth v. Lam Hue To, 391 Mass. 301, 304 n. 3, 461 N.E.2d 776 (1984). Cf. Commonwealth v. Delaney, 11 Mass.App.Ct. 398, 403 n. 3, 416 N.E.2d 972 (1981). When a trial judge is confronted by prosecutorial noncompliance with such an order, he is authorized to impose whatever remedy he deems just. See Mass.R.Crim.P. 14(c)(1). The Commonwealth concedes that the laboratory report constituted exculpatory evidence. See Commonwealth v. Ellison, supra, 376 Mass. at 22 n. 9, 379 N.E.2d 560 (evidence is "exculpatory" if it tends to negate the guilt of the accused). ⁴ We consider whether the request for the laboratory report was general or specific, whether the evidence contained in the report was material, and whether the defendant was prejudiced by the suppression of the report.

Depending on the specificity of the defendant's request for exculpatory evidence different standards of judicial review apply. "Where the accused has made a request for evidence sufficiently specific to place the prosecution on notice as to what the defense desires, the evidence must be disclosed even if it provides only 'a substantial basis for claiming materiality exists.' " Commonwealth v. Wilson, 381 Mass. 90, 108-109, 407 N.E.2d 1229 (1980), quoting United States v. Agurs, 427 U.S. 97, 106, 96 S.Ct. 2392, 2398, 49 L.Ed.2d 342 (1976). "By way of contrast, where there has been no defense request whatsoever or only a general request for 'all Brady' or 'all exculpatory' evidence," id. at 109, 96 S.Ct. at 2400, the test is whether the undisclosed evidence creates a "reasonable doubt that did not otherwise exist," id. at 100, 96 S.Ct. at 2400. See Commonwealth v. Lam Hue To, supra, 391 Mass. at 308, 461 N.E.2d 776; Commonwealth v. Collins, 386 Mass. 1, 9-10, 434 N.E.2d 964 (1982). The judge, in his written findings, concluded that the defendant's request was merely general; he also concluded that the evidence of the laboratory report was not, under the latter standard, material and prejudicial. We conclude that he erred as matter of law. ⁵

The defendant asserts that his request was specific, because the pretrial agreement asked specifically for "police reports" and "scientific reports." The judge held, however, relying on Commonwealth v. Jackson, 388 Mass. 98, 445 N.E.2d 1033 (1983), that these words were not specific enough to put the Commonwealth on notice that the laboratory report as to the test of the knife was requested. In Jackson, supra, the defendant admitted that his request for exculpatory material was general in nature, but argued that, taken with other requests, it should be considered specific. We disagreed. We held that a request for "state, county or police department reports" was not a request specific enough to put the prosecutor on notice with respect to reports of police investigations of another, apparently unrelated, crime. iId. at 110, 445 N.E.2d 1033. The Jackson case is not dispositive, because the evidence not disclosed in this case was developed for the sole purpose of investigating the crime at bar. As we made clear in Jackson, a request to be considered "specific" must " 'provide the Commonwealth with notice of the defendant['s] interest in a particular piece of evidence.' Commonwealth v. Wilson, 381 Mass. 90, 109, 407 N.E.2d 1229 (1980)." Id. In light of the charge against the defendant, the scientific investigation conducted, and the fact that the prosecution knew that the presence or absence of blood on the defendant's knife was highly material, the laboratory report concerning the weapon was within the plain meaning of the words used in the request for police and scientific reports. Thus, we hold that the defendant made a specific request for the laboratory report and, therefore, that the defendant need only show a substantial basis for his claim that it was material.

Applying this test, we note that, while there was ample evidence of a fight in which the defendant struck the victim, the evidence offered to prove that it was the defendant who stabbed the victim was weaker. The Commonwealth called four eyewitnesses--the victim and three of his friends. Two of the friends testified that, while they saw the defendant lunge at the victim, they did not see the defendant stab him. They did not see a knife in the defendant's hand at any time. The third friend was not asked whether he saw a knife. The victim himself testified equivocally; on direct examination, he said that he "saw a glimpse of a knife" as the defendant withdrew his hand, but he also testified, on cross-examination, that he saw no knife in the lunging hand, and that everything happened so quickly he "really didn't know what happened." In this context, where it was the prosecution's theory that the defendant used the knife found on him to stab the victim, we think the defendant has more than a substantial basis for claiming that a laboratory report showing no traces of blood on his knife was material and prejudicial. ⁶

It is undisputed that the Commonwealth never disclosed the laboratory report, and that the very existence of the report was not discovered until nearly five months after the defendant's conviction. " 'When the...