Com. v. Odgren

• Decision Date: 15 October 2009
• Docket Number: SJC-10369.
• Citation: 455 Mass. 171,915 N.E.2d 215
• Parties: COMMONWEALTH v. John ODGREN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

915 N.E.2d 215

455 Mass. 171

COMMONWEALTH v. John ODGREN.

SJC-10369.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 4, 2009.

Decided October 15, 2009.

Marguerite T. Grant, Assistant District Attorney (Daniel J. Bennett, Assistant District Attorney, with her) for the Commonwealth.

Jonathan Shapiro, Boston (Patricia L. Garin with him) for the defendant.

Carlene A. Pennell, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

BOTSFORD, J.

We consider whether the Commonwealth, in a criminal case, may seek the production of records from a third party in advance of trial or an evidentiary hearing by issuing a subpoena duces tecum directly to the party under G.L. c. 277, § 68, or whether it must first obtain judicial approval, pursuant to Mass. R.Crim. P. 17(a)(2), 378 Mass. 885 (1979), as construed by Commonwealth v. Lampron, 441 Mass. 265, 268-271, 806 N.E.2d 72 (2004) (Lampron). We conclude that it must first obtain judicial approval.¹

Background. On January 19, 2007, the defendant, then sixteen years of age, was arraigned in the District Court on charges of murder in the first degree and related offenses in the stabbing death of a fellow student at Lincoln-Sudbury High School. He was ordered held without bail in the Department of Youth Services secure unit at the Plymouth County correctional facility (facility). A probable cause hearing was scheduled for March 5, 2007. See Mass. R.Crim. P. 3(f), as appearing in 442 Mass. 1503 (2004).

On February 9, 2007, the district attorney for the northern district (district attorney or Commonwealth) issued a subpoena duces tecum to the facility's keeper of records, seeking "any books, papers, visitor log, taped phone calls, and pin list"² for the period from January 19 to February 12, 2007.³ The subpoena directed the keeper of records to produce the requested materials in person at the March 5 probable cause hearing, or, "[i]n lieu of a court appearance," to "provide the requested records prior to" March 5. A handwritten note accompanying the subpoena requested the records be mailed to the district attorney's office. Within a couple of days of receiving the subpoena, the facility's telephone administrator copied the recordings from the telephone system's computer hard drive onto a compact disk and mailed it to the district attorney's office.

On various dates between February 13 and March 1, 2007, the Commonwealth presented evidence of the stabbing to a grand jury, which indicted the defendant for murder in the first degree on March 1, 2007. Accordingly, the scheduled probable cause hearing in the District Court never took place; on March 14, the Commonwealth entered a nolle prosequi on the charges in that court.

Thereafter, the Commonwealth issued to the keeper of records three more subpoenas—on April 2, May 14, and July 26, 2007—collectively requesting recordings of the defendant's telephone calls for the period from February 13 to July 31, 2007.⁴ The return dates for two of the three subpoenas coincided, respectively, with a case status conference in the Superior Court (April 30) and a pretrial conference in that court (May 30); the return date for the third subpoena (July 31) was not connected to any court hearing. Each of the three subpoenas (like the February subpoena) stated that the requested materials could be provided before the return date. Within one or two days of receiving each subpoena, the keeper of records mailed compact disc recordings of the requested telephone calls to the district attorney's office.⁵ According to the defendant, the subpoenaed recordings include over 2,000 minutes (33.3 hours) of conversations over a period of 191 days, the "vast majority of which" were between him and his parents and brother; some involved friends. On June 12, 2007, the Commonwealth provided the defendant copies of the recordings obtained through the February, April, and May subpoenas, pursuant to Mass. R.Crim. P. 14(a)(1)(A), as appearing in 442 Mass. 1518 (2004). As for the recordings obtained through the July subpoena, the Commonwealth provided them to the defendant some time between January and April, 2008. Trial was scheduled for September 15, 2008.

In January, 2008, the defendant notified the Commonwealth of his intent to rely on a defense of lack of criminal responsibility because of mental disease or defect. See Mass. R.Crim. P. 14(b)(2)(A), as appearing in 442 Mass. 1518 (2004). In April, 2008, the defendant, asserting that the Commonwealth had informed him of its intent to search the subpoenaed recordings for evidence of criminal responsibility, moved to suppress the recordings. The defendant claimed that the Commonwealth lacked authority to issue the subpoenas without first obtaining judicial approval pursuant to Mass. R.Crim. P. 17(a)(2),⁶ as construed by Lampron, 441 Mass. at 268-271, 806 N.E.2d 72 (only judge can issue subpoena for records before trial pursuant to motion by requesting party, supported by affidavit, showing relevance, admissibility, necessity, and specificity).⁷ The Commonwealth countered that it was empowered to issue the subpoenas on its own, pursuant to G.L c. 277, § 68,⁸ and that, even were judicial approval required, it would be entitled to such approval.⁹

At the outset of the hearing on the defendant's motion, the judge (with the parties' agreement) decided to focus on whether the Commonwealth had erred in failing to comply with the requirements of rule 17(a)(2) and Lampron because if so, the judge reasoned, the subpoenas would have issued improperly, and thus the judge would not need to address the defendant's constitutional claims. The judge added that, were he to conclude that the Commonwealth had erred in failing to comply with the requirements of rule 17 and Lampron, it would still be entitled, in a future motion, to seek to satisfy those requirements.

On May 14, 2008, following the hearing (at which the facility's telephone system administrator was the sole witness), the judge allowed the defendant's motion to suppress. He concluded that the Commonwealth had erred in failing to seek prior judicial approval before issuing the subpoenas, and ordered the parties to turn over all copies of the recordings and associated documents to the clerk of the Superior Court, where they would be impounded.

Subsequently, the Commonwealth moved under rule 17 and Lampron for judicial approval to subpoena a portion of the recordings it had originally sought, namely, recordings of the defendant's telephone calls from January 19 to March 6, 2007. On May 23, 2008, the judge found the Commonwealth had failed to satisfy the requirements of Lampron and denied the motion. He said, however, that closer to trial he would be willing to revisit the Commonwealth's attempt to subpoena the telephone calls, further noting that any future attempt by the Commonwealth to subpoena the recordings would be subject to a possible motion to quash as well as to the defendant's constitutional challenges.

Thereafter, the Commonwealth filed a petition under G.L. c. 211, § 3, in the county court, seeking review by a single justice of the denial of its Lampron motion. Alternatively, it requested leave to pursue an interlocutory appeal from the allowance of the defendant's motion to suppress. See Mass. R.Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996). The single justice denied the Commonwealth's petition (from which the Commonwealth did not appeal),¹⁰ but granted it leave to pursue an interlocutory appeal from the suppression ruling. We agree with the Superior Court judge that the Commonwealth was required to comply with rule 17 and to obtain prior judicial approval in seeking the defendant's telephone records from the jail, but we do not agree that suppression of the records is required because of the Commonwealth's error. The defendant, however, may still pursue the constitutional challenges that the judge deferred.¹¹

Discussion. (a) Defendant's standing. The Commonwealth claims the defendant lacks standing to challenge the issuance of the subpoenas because the subpoenas concern telephone records of a third party, the facility, and because in any event the defendant had no reasonable expectation of privacy in his telephone calls. We disagree. Although the recordings are, in a proprietary sense, those of the facility rather than the defendant, the defendant has a direct interest in them because they consist of his own conversations with family and friends.¹² Moreover, the defendant, as a party to this criminal case, has a special concern with ensuring that the Commonwealth abide by the rules of criminal procedure, and the facility cannot reasonably be relied on in these circumstances to vindicate that concern. Cf. Commonwealth v Lam, 444 Mass. 224, 228-229, 827 N.E.2d 209 (2005) (Commonwealth had standing to object to defendant's motion to issue subpoenas to third parties where Commonwealth had interest in ensuring compliance with rule 17[a][2]'s prohibition against using rule as discovery device or for fishing expedition, and had interest in protecting its witnesses from harassment by improper discovery requests) United States v. Noriega, 764 F.Supp. 1480, 1493 (S.D.Fla.1991) (court's ability to ensure against abuse of subpoenas duces tecum "assumes that the recipient of the subpoena has some interest or incentive in filing" motion to quash or modify; "it is wishful thinking to expect that prison officials will either oppose a government-requested subpoena which implicates an incarcerated defendant's interests or else enable the defendant to file his own motion to quash by notifying him that such subpoenas have been issued")¹³; State v. Barreiro, 432 So.2d 138, 139 n. 1 (Fla.Dist.Ct.App.1983) (defendant "has standing to move to quash a subpoena duces tecum served on a third-party corporation based on his status as a defendant...