Com. v. Gliniewicz

• Decision Date: 09 December 1986
• Parties: COMMONWEALTH v. Charles S. GLINIEWICZ (and five companion cases 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1324

500 N.E.2d 1324

398 Mass. 744

COMMONWEALTH v. Charles S. GLINIEWICZ

(and five companion cases ¹).

Supreme Judicial Court of Massachusetts Plymouth.

Argued Oct. 9, 1986.

Decided Dec. 9, 1986.

Donald A. Harwood, Brockton, for Charles S. Gliniewicz.

John P. Corbett, Asst. Dist. Atty., for the Com Andrew Silverman, Committee for Public Counsel Services, Boston, for John A. Durning, Jr.

Before HENNESSEY, C.J., and LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

LYNCH, Justice.

After a jury trial in the Superior Court the defendants, Charles S. Gliniewicz and John A. Durning, Jr., were each found guilty on two indictments charging assault and battery with a dangerous weapon, and one charging breaking and entering a building in the nighttime. ² They were each found not guilty on two indictments charging armed assault with intent to commit murder.

Each defendant was sentenced to eight to ten year terms at the Massachusetts Correctional Institution, Cedar Junction, on the assault and battery convictions. They were sentenced to twelve to twenty year terms on the breaking and entering convictions, to run from and after the other sentences. The defendants appeal from their convictions and from the denial of their motions for new trials. We took the cases on our own motion and remand for new trials.

Both defendants contend that the trial judge erred in denying their motions to suppress certain serological test results that showed the presence of blood on their boots. Gliniewicz raises two arguments not raised by Durning: that the trial judge erred in denying Gliniewicz's motion to suppress his boots, and that the imposition of a consecutive sentence violates his right to be free from double jeopardy.

The convictions stemmed from an incident on January 27, 1982, at Ralph Costello's Italian Canteen in Bridgewater (canteen). In the early morning hours, Ralph Costello and his brother, Anthony Costello, were awakened by two intruders who had broken into the canteen and entered the room upstairs where the brothers were sleeping. An altercation ensued, and both brothers were stabbed.

Both defendants had patronized the canteen on the evening of January 26, 1982. Ralph Costello testified that after closing time he saw the defendants "two corners up" from the canteen. Ralph Costello identified the defendants as the intruders who stabbed him and his brother.

During the investigation at the crime scene, the police found bootprints apparently left by the intruders. The prints were photographed and introduced at trial. A pair of workboots was seized from Gliniewicz on March 17, 1982, and from Durning on March 27, 1982.

In June, 1982, the boots of both defendants were chemically tested by Robert Sullivan of the Department of Public Safety in Boston. He found no blood on either pair of boots. In August, 1982, the boots were delivered to John Abbott, a forensic serologist employed by Serological Research Institute of Burlington. He conducted tests which, he testified, were capable of detecting far smaller quantities of blood than the tests conducted by Sullivan. ³ Abbott found evidence of human blood on the boots of both defendants.

Prior to trial, both defendants filed motions to suppress the results of the serological tests conducted by Abbott. Both motions were denied.

1. Motions to suppress the serological tests by Abbott. The defendants argue that their due process rights have been violated because pretrial tests performed on their boots destroyed the evidence from which the Commonwealth's expert concluded that the boots were stained with human blood. The pretrial conference report executed under the provisions of Mass.R.Crim.P. 11(a)(2)(A), 378 Mass. 862 (1979), required the Commonwealth to allow the inspection of "material and relevant physical evidence and documents ... [i.e.] boots, knives, pictures and any other physical evidence...." It also required the Commonwealth to provide to the defendant in writing, "reports ... of scientific tests." The date for such discovery was to be on or before June 10, 1982; the date was subsequently extended to July 22, 1982, for the defendant Durning. Because we conclude that the Commonwealth did not meet its obligations under the pretrial conference report, we order that the defendants be afforded new trials and we do not reach the due process claims.

Massachusetts R.Crim.P. 11(a)(2)(A) states, in pertinent part: "The conference report shall contain a statement of those matters upon which the parties have reached agreement.... Agreements reduced to writing in the conference report shall be binding on the parties and shall control the subsequent course of the proceeding." Such agreements reduced to writing may be equivalent to discovery orders. Commonwealth v. Pope, 19 Mass.App.Ct. 627, 630 n. 3, 476 N.E.2d 969 (1985). Commonwealth v. Scalley, 17 Mass.App.Ct. 224, 230 n. 8, 457 N.E.2d 298 (1983).

This court has upheld a trial judge's denial of a motion to exclude testimony where the statement was belatedly disclosed in contravention of a discovery agreement but where the defendant made no showing of prejudice. Commonwealth v. Cundriff, 382 Mass. 137, 148-151, 415 N.E.2d 172 (1980), cert. denied, 451 U.S. 973, 101 S.Ct. 2054, 68 L.Ed.2d 353 (1981). See also Commonwealth v. Pope, supra, 19 Mass.App.Ct. at 629-631, 476 N.E.2d 969 (denial of motion to exclude belatedly disclosed witness upheld where discovery agreement violated but defendant made no showing of prejudice).

Additionally, this court has held that remedial action under Mass.R.Crim.P. 14(c)(1), 378 Mass. 874 (1979), was warranted as a sanction for noncompliance with a discovery order where the prosecutor's failure to disclose exculpatory evidence violated both the defendant's constitutional rights and a court order, and prejudice resulted. Commonwealth v. Lam Hue To, 391 Mass. 301, 310, 461 N.E.2d 776 (1984). The granting of a motion to dismiss (rather than a new trial) would be an appropriate remedy "where failure to comply with discovery procedures results in irremediable harm to a defendant that prevents the possibility of a fair trial." Id. at 314, 461 N.E.2d 776. See also Commonwealth v. Murchison, 392 Mass. 273, 276, 465 N.E.2d 256 (1984).

In the present case we are confronted with a different situation, the destruction of evidence by the Commonwealth in the process of testing, which evidence was the subject of a pretrial written agreement to produce for inspection. When the boots of both defendants were delivered to Abbott for testing, the assistant district attorney authorized Abbott to do whatever he needed to the boots, including cutting into them. The defendants claim that this violated the pretrial agreement to permit defense inspection of the boots. We agree.

The testing of the defendant's boots, conducted by Abbott involved a two step process. The first was an ortho-tolidine test whereby a small section of the item to be tested was wiped with filter papers. The papers were then treated with chemicals and the reaction indicated the presence or absence of blood. This procedure initially requires a subjective determination regarding the rapidity of development and intensity of the change in color in assessing the presence of blood.

The second step was electrophoresis, which involved preparing liquid extracts from a piece of the boot of one of the defendants and the lace of the boot of the other defendant. The liquids were then poured into a gel substance and treated with electric current to detect the presence of protein material. Abbott's analytical report dated September 8, 1982, found that "[t]races of human blood were demonstrated to be present" on the lacing of the right boot of Durning, and on the top stitching of the toe area of the left boot of Gliniewicz. Abbott further stated, "The quantity was insufficient for further testing." Blood was not detected on the other boots.

The pretrial agreement was violated because the boots had been altered by the testing so that comparable testing by the defendants was not possible. In denying the defendants' motions to suppress the results of the tests done by Abbott, the judge found that no prejudice to the defendants was demonstrated "because the crucial evidence has been effectively preserved." No one disputes the fact that the sections of the defendants' boots that tested positive were destroyed in the testing. While the results of the tests may have been available, there was no way to duplicate those tests. The trial judge himself acknowledged this. "Although Mr. Abbott necessarily consumed the blood samples and no further tests may now be conducted to duplicate his results or to further analyze the...