Com. v. Kee, SJC-09845.

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtCowin
Citation870 N.E.2d 57,449 Mass. 550
PartiesCOMMONWEALTH v. Daniel KEE.
Docket NumberSJC-09845.
Decision Date20 July 2007
870 N.E.2d 57
449 Mass. 550
Daniel KEE.
Supreme Judicial Court of Massachusetts, Hampden.
Argued April 6, 2007.
Decided July 20, 2007.

[870 N.E.2d 60]

Jane Larmon White, Committee for Public Counsel Services, for the defendant.

Bethany C. Lynch, Assistant District Attorney, for the Commonwealth.



449 Mass. 550

A Superior Court jury convicted the defendant, Daniel Kee, of distribution of a Class B controlled substance.1

449 Mass. 551

On appeal, he argues that the judge's denial of his "motion for relief based on lost or destroyed evidence" (a "marked"2 ten dollar bill) denied him due process. A related claim is that the judge improperly denied his request for a so-called "missing evidence" jury instruction (i.e., that the failure, without good explanation, to produce important evidence warrants an inference

870 N.E.2d 61

that such evidence, if produced, would have been unfavorable to the Commonwealth). Finally, the defendant maintains that the prosecutor's closing argument was improper because it contained inflammatory statements and vouched for the credibility of Commonwealth witnesses. We granted direct appellate review. We conclude that the judge committed no error and that the prosecutor's closing argument did not contain improper material, and we therefore affirm the convictions.

The essence of the case is expressed in the defendant's first two claims, which concern the "loss" of a "marked" ten dollar bill used in an undercover drug purchase in Springfield. The defendant contends that he was prejudiced by the admission of testimony concerning this money when the marked bill itself was not produced at trial, and that, even if it were permissible to admit such testimony, the judge erred in failing to give a missing evidence instruction. We conclude that there was no error.

We summarize the facts the jury permissibly could have found. On March 31, 2005, State police and Springfield officers were working as a team to arrest drug sellers in the Springfield area. Three of these officers testified: Trooper David Patterson, the team's undercover officer; Sergeant Robert Tardiff of the Springfield police, the surveillance officer; and Trooper Thomas Fitzgerald, the arresting officer. Trooper Patterson had received one hundred dollars with which he was expected to make drug purchases "all day." No photocopy of the money was made because the group of officers was working out of a new office, apart from the Springfield police station, that had no photocopier. To enable later identification of the money used in the purchases,

449 Mass. 552

Trooper Patterson marked the bills with a number and informed the members of the team of the symbol and its location on the bills. The number was placed so that it would be difficult for drug dealers to notice it.

Trooper Patterson was outfitted with a device that permitted the other team officers to listen to his conversations so that, should he be in any danger, they would be alerted immediately. The device did not record conversations and was used because, according to Trooper Patterson, Springfield was "a bad place" and he was concerned for his safety.

At approximately 9:40 P.M., Trooper Patterson made contact with the defendant and arranged to buy a "20," a rock of "crack" cocaine valued at twenty dollars. The trooper gave the defendant a twenty dollar bill for the purchase and an additional ten dollar bill for his services as the middleman, i.e., the person who obtained the drugs from the seller and gave them to the buyer. Both bills were marked. The defendant entered a doorway to an apartment building, leaving the trooper's presence for approximately fifteen to twenty seconds. When he returned, he handed the trooper a piece of crack cocaine. (A certificate from the Department of Public Health laboratory stated that the item Trooper Patterson received from the defendant contained cocaine.)

With the evidence in hand, the trooper gave the prearranged arrest signal to the surveillance officer, Sergeant Tardiff. As the trooper walked to his vehicle, which was parked "right there,"3 he saw the arresting units "mov[ing] in," and watched as the defendant was placed under arrest. Trooper Patterson never lost sight of the

870 N.E.2d 62

defendant until after he was arrested. He identified the defendant in court as the man from whom he had purchased the drugs on the night in question.

Sergeant Tardiff was responsible for the safety of the undercover officer. From a distance of about fifty feet, in an unmarked vehicle, he watched the initial meeting between Trooper Patterson and the defendant. The area was "very well-lit" and he had no difficulty seeing the defendant. He kept his eyes on the officer

449 Mass. 553

and the defendant during most of the remainder of the transaction and did not "lose sight of the defendant . . . from the time [the defendant] walked back around the building with Trooper Patterson to the time he was arrested." Sergeant Tardiff identified the defendant in court as the man with whom Trooper Patterson had been interacting.

Following the arrest, a ten dollar bill marked with the number that Trooper Patterson had written on it was seized from the defendant's right pocket. This was the same pocket into which the trooper observed the defendant place the money. Trooper Fitzgerald, the arresting officer, saw another officer take a ten dollar bill from the defendant; Trooper Fitzgerald looked at the bill and saw the "marking on the back that Trooper Patterson always [uses]." (The trooper who recovered the money from the defendant's pocket did not testify.) Because the police were operating on a restricted budget, they did not retain the marked money; rather, they used it for additional drug purchases.

Based on testimony that the area was dark, with many people "milling about," and a suggestion (disputed by the Commonwealth's evidence) that the arresting officer made the arrest based only on a description that fit many of the individuals in the area (black male, in jeans, baseball cap and dark jacket), the defense argued that the police had arrested the wrong man. To buttress this contention, the defendant claimed that he did not possess the marked ten dollar bill. Cross-examination and closing argument focused on the failure of the police to photocopy or record the marked bill.

The defendant filed a motion in limine (titled a "motion for relief") to prevent the Commonwealth from introducing any evidence regarding the marked ten dollar bill. The judge denied the motion and the defendant maintains that this was an erroneous ruling.4,5

We have been confronted frequently with the problem of

449 Mass. 554

governmental loss of evidence that might be of some benefit to a criminal defendant. To assist, we have developed criteria for dealing with the issue of lost or destroyed evidence.

"A defendant who seeks relief from the loss or destruction of potentially exculpatory evidence has the initial burden . . . to establish `a "reasonable possibility, based on concrete evidence rather than a

870 N.E.2d 63

fertile imagination," that access to the [evidence] would have produced evidence favorable to his cause' . . . ." Commonwealth v. Dinkins, 440 Mass. 715, 717, 802 N.E.2d 76 (2004), quoting Commonwealth v. Neal, 392 Mass. 1, 12, 464 N.E.2d 1356 (1984). That is, the defendant must establish a reasonable possibility that the lost or destroyed evidence was in fact exculpatory. Commonwealth v. Kater, 432 Mass. 404, 418, 734 N.E.2d 1164 (2000). If a defendant meets this burden, the court proceeds to a balancing test and "weigh[s] the culpability of the Commonwealth, the materiality of the evidence and the potential prejudice to the defendant." Commonwealth v. Willie, 400 Mass. 427, 432, 510 N.E.2d 258 (1987). In the balancing process, the Commonwealth is considered culpable if the evidence has been lost or destroyed through its inadvertence or negligence. Commonwealth v. Harwood, 432 Mass. 290, 295, 733 N.E.2d 547 (2000). Evidence is considered material in this context if, "in considering the entire record, it creates a reasonable doubt as to the defendant's guilt that would not otherwise exist." Commonwealth v. Otsuki, 411 Mass. 218, 231, 581 N.E.2d 999 (1991). Prejudice in this equation has not been defined in our cases any more specifically than an inquiry whether access to the missing item would have aided the defendant's case. See, e.g., Commonwealth v. Cintron, 438 Mass. 779, 785, 784 N.E.2d 617 (2003). In reviewing the denial of a motion based on the Commonwealth's loss of allegedly exculpatory evidence, we do not disturb the judge's decision absent a clear abuse of discretion. Id. at 784, 784 N.E.2d 617.

Our cases have consistently required that, before the balancing test is undertaken, the defendant must meet his initial burden of showing a reasonable possibility that the lost evidence was exculpatory. See Commonwealth v. Laguer, 448 Mass. 585, 595, 863 N.E.2d 46

449 Mass. 555

(2007) (affirming denial of motion for new trial due to failure to disclose fingerprint report; absence of defendant's fingerprints at crime scene not exculpatory as defendant was aware Commonwealth could not place him in victim's apartment by means of any physical evidence); Commonwealth v. Dinkins, supra at 718, 802 N.E.2d 76 (affirming denial of motion to suppress due to inadequate showing that access to lost gun and shell casings "would have helped rather than hurt his cause"); Commonwealth v. O'Day, 440 Mass. 296, 307, 798 N.E.2d 275 (2003) (affirming denial of motion to dismiss due to inadequate showing that Commonwealth's intentional destruction of infernal device denied defendant access to exculpatory evidence); Commonwealth v. Cintron, supra at 785, 784 N.E.2d 617 (affirming denial of motion to dismiss or suppress due to defendant's failure to show that access...

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