Com. v. Shaughessy
| Decision Date | 19 November 2009 |
| Docket Number | SJC-10416. |
| Parties | COMMONWEALTH v. Eric SHAUGHESSY.<SMALL><SUP>1</SUP></SMALL> |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Mary E. Lee, Assistant District Attorney, for the Commonwealth.
Michael B. Galvin, Boston (Thomas J. Carey, Jr., Hingham, with him) for the defendant.
Peter B. Krupp, Boston, for Committee for Public Counsel Services & others, amici curiae, submitted a brief.
Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.
At issue in this case is whether the Commonwealth's privilege not to disclose the identity of an informant can be overcome on the basis of an affidavit submitted ex parte by the defendant.2 The particular question we must answer is whether the judge abused his discretion in accepting and relying on the ex parte affidavit without affording the Commonwealth access to it and an opportunity to respond to its contents.
The defendant claims that the judge's handling of the matter was consistent with language that this and other courts have used in the past concerning the use of ex parte submissions in circumstances such as presented here, where it is not otherwise clear from the record of the case that disclosure of the informant's identity would provide something material to the defense. The defendant also claims that the judge's acceptance and reliance on the ex parte affidavit in this case is similar to the use of ex parte submissions (that we have approved) in cases where the defendant's submission would likely furnish the prosecution with "information incriminating to the defendant which it otherwise would not be entitled to receive." Commonwealth v. Mitchell, 444 Mass. 786, 796, 797, 831 N.E.2d 890 (2005) ().
The Commonwealth, on the other hand, argues that stripping it of the informant privilege on the ex parte word of a defendant alone, with no meaningful opportunity to contest the proffer, "is to strike the death knell for the protection of all confidential informants in Massachusetts." It urges us to order that "trial courts may never order the disclosure of the identity of an informant" based on such a submission, lest we be seen to promote "the defendant's right to commit perjury without any potential for consequences."
We conclude that the use of ex parte affidavits should only be permitted in exceptional circumstances but that the judge did not abuse his discretion in accepting the affidavit in this case. However, before a defendant's ex parte affidavit can overcome the Commonwealth's privilege, a judge must afford the Commonwealth some avenue of response. This may include ordering that the Commonwealth be provided with a redacted or summary version of the material included in the affidavit.
Background. The defendant was indicted for trafficking in Oxycodone in violation of G.L. c. 94C, § 32E (c), after being arrested in front of a Plymouth residence, which the police had under surveillance in anticipation of a delivery of a quantity of Oxycodone pills to the defendant from his supplier. As the police moved in, the defendant saw them and dropped a bag containing ninety-seven Oxycodone pills. Another bag of one hundred pills was subsequently recovered from a hole in the ceiling of the residence.3
The surveillance and the arrest arose out of a series of telephone calls made to the defendant by a confidential informant after the informant had been arrested by Marshfield police in an unrelated matter earlier in the day. The informant told the police that he had purchased Oxycodone from the defendant in the past, and he agreed to act as a purported purchaser on their behalf.4 The informant then telephoned the defendant and arranged to make a purchase from him that afternoon. The informant told the police that he was to pick up the Oxycodone pills at the address of the residence after the defendant received a delivery from his supplier. The informant spoke to the defendant by telephone several times during the day and updated the police about the progress of the proposed purchase and the expected arrival of the supplier. These telephone calls apparently were all made from the police station where the informant remained in custody. The informant was not present when the police made the arrest, which was sequenced to occur right after the alleged supplier arrived at the residence.
After his indictment, the defendant moved for the disclosure of the identity of the informant, arguing that disclosure was necessary to his defense of entrapment, in that the informant was a participant in the activities that led to his arrest and possessed "exculpatory evidence." No affidavit was filed in support of the motion and, at a hearing, the judge stated his view that the defendant had not satisfied his burden of demonstrating why and how the identity of the informant was material to his defense.
Thereafter, defense counsel submitted his own affidavit outlining the information he had obtained about the informant from the police reports, grand jury testimony, and the testimony of police officers (taken at a motion to suppress hearing). Based on this information, defense counsel asserted that "the initiation of [the] alleged drug transaction by the confidential informant and the quantity of ongoing communication between the confidential informant and the police would tend to indicate entrapment, which is a major defense of this matter." At a subsequent hearing, the judge remained unsatisfied that the defendant had made a sufficient showing of inducement by the informant to warrant piercing the privilege. The judge then suggested that an affidavit from the defendant might be necessary to bridge that gap. Defense counsel expressed concern about his client's "exposure" should he sign an affidavit, but suggested that if it could be submitted "ex parte" and "under seal," an affidavit from the defendant "could be more thorough than I was in my affidavit." In the absence of such an affidavit, the judge denied the motion "at this point based on what's before me."
Represented by new counsel, the motion for the disclosure of informant information was renewed, now based on an affidavit from the defendant that counsel proposed to submit for the judge's inspection "in camera," that is, for his sole inspection. At the hearing on the renewed motion, the judge first considered whether to accept the defendant's affidavit "ex parte" and asked the prosecutor whether she wanted to be heard on that point. The prosecutor responded that she did not, and voiced no objection to the judge's acceptance and review of the affidavit on that basis. The judge then examined the affidavit. In the affidavit, the defendant revealed the name of the person whom he believed was the confidential informant, and outlined his contacts with that person.5
The judge asked for further argument on the informant disclosure issue, to which the prosecutor responded first by noting the "difficult position" she was in to be "arguing against an unknown document." The prosecutor then reiterated arguments she had previously made, essentially, that the confidential informant was not present when "the deal was done" and that the information provided to the police that led to the defendant's arrest was information concerning the arrival of the defendant's supplier, an arrangement that predated the informant's contacting the defendant at the behest of the police. Consequently, the prosecutor argued that the situation was no different from that of an informant who merely passes credible information along to the police, who then use that information as a basis for probable cause to arrest or search. In such a situation, the prosecutor contended, disclosure would not ordinarily be required unless the informant was a percipient witness or a direct participant in the charged offense.
The judge ruled that the defendant, in his affidavit, had provided a version of the contacts between himself and the person he identified, which suggested "importuning" by the informant sufficient to meet the defendant's burden of demonstrating why disclosure of this person's status as an informant was material to the defendant's entrapment defense. The judge therefore ordered the Commonwealth to confirm or deny that the named individual was the confidential informant, and directed defense counsel to provide the name of the individual to the prosecutor for that purpose.6 If the named individual was the informant, the Commonwealth was further ordered to provide information about promises, rewards, or inducements offered or provided to him in exchange for his cooperation.
Eight days later, the Commonwealth filed a motion to reconsider seeking access to the defendant's ex parte affidavit and a reopening of the hearing on the motion for disclosure of the informant's identity. The motion was opposed, and after a hearing, the judge affirmed his order of disclosure. The judge explained that, in the circumstances of this case, where, in order to meet his burden, the defendant was required to reveal a course of dealings with a person that was incriminating and, if the person was not the informant, the Commonwealth might not know about, it was appropriate for the judge to receive the affidavit ex parte in order to preserve the defendant's rights under the Fifth and Sixth Amendments to the United States Constitution. The prosecutor responded that the Commonwealth faced a dilemma, because the entrapment defense might never be used at trial, and the Commonwealth would have exposed an informant to potential hazards for no reason. The judge then questioned whether the prosecutor's "objection to the procedure I employed relates [only] to the timing of the disclosure." The prosecutor responde...
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