Commonwealth v. Buccella

• Decision Date: 07 November 2000
• Citation: 751 NE 2d 373,434 Mass. 473
• Parties: COMMONWEALTH v. DOMENIC BUCCELLA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

434 Mass. 473

751 NE 2d 373

COMMONWEALTH v. DOMENIC BUCCELLA.

Supreme Judicial Court of Massachusetts, Plymouth.

November 7, 2000.

July 9, 2001.

Present: (SITTING AT BROCKTON): MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & SOSMAN, JJ.

Gail M. McKenna, Assistant District Attorney, for the Commonwealth.

Michael W. Turner for the defendant.

SOSMAN, J.

The defendant was charged with violating the civil rights of one of his teachers and two counts of malicious destruction of property over $250, all three charges arising out of graffiti on school property that contained obscenities and racial slurs. The evidence identifying the defendant as the perpetrator of these crimes included comparison of the handwriting in the graffiti with the defendant's handwriting in several of his school work papers. At the request of its handwriting expert, the Commonwealth moved to compel the production of witnessed, comprehensive handwriting exemplars for further comparison. The defendant filed a motion to suppress the handwriting samples provided by his high school and a motion to dismiss, claiming that the evidence used to charge him was illegally obtained. A judge in the District Court denied the Commonwealth's motion for production of exemplars and granted the defendant's motion to suppress and his motion to dismiss. The Commonwealth appealed, and we transferred the case to this court on our own motion. For the following reasons, we reverse and remand the matter for further proceedings.

1. Facts. The defendant was a student at East Bridgewater High School (high school). During the second semester of the 1996-1997 school year, the defendant had refused to work with his special education teacher, Ms. Shirley Phillips, and had engaged in numerous attempts to disrupt her work in the classroom. The defendant's disruptive behavior included racial slurs directed at Ms. Phillips, making "rude guttural sounds whenever she entered the room," and calling her "Tituba," a reference to a black slave in "The Crucible." Despite warnings, reprimands, and a suspension, the defendant's harassment of Ms. Phillips did not abate.

The incidents at issue in the present case occurred during the first two months of the 1997-1998 fall semester. Sometime between the end of the school day on Friday, September 5, 1997, and the start of school on Monday, September 8, 1997, racial slurs were written on the blackboard in Ms. Phillips's classroom. While the defendant's prior racial animosity toward Ms. Phillips made him a potential suspect, there were many other persons who had had access to the room over the course of the weekend. Photographs were taken and shown to the faculty to determine whether anyone could recognize the handwriting on the blackboard, but no identification was made at that time.

On October 16, 1997, and again on October 23, 1997, the high school was vandalized with obscene words and wavy lines written on the corridor walls. The East Bridgewater police department and the bureau of criminal investigation (BCI) took photographs of the new vandalism. The school's vice principal informed the police that the defendant had been seen by members of the faculty in the corridor at the time of the October 23 incident.

The vice principal investigated the incidents and, on November 3, 1997, she provided the police with statements from other teachers at the school indicating that, for one of the incidents, the defendant was the only student in the vandalized area of the building who was not in his classroom when the vandalism occurred. She also informed the police that she suspected the defendant because, on the day of the October 16 incident, the defendant had been in her office and had spoken the same words that were later written on the walls.

The vice principal provided the police with samples of school work papers written by the defendant, along with "two other student samples,"¹ requesting that the police conduct a handwriting analysis to determine whether any of the handwriting matched the writing on the walls or the earlier writing on Ms. Phillips's blackboard. The police submitted the samples to an analyst at BCI, who reported the next day that the handwriting in the October 16 and October 23 graffiti matched the defendant's handwriting. Further handwriting analyses were conducted by an independent expert, who confirmed that the defendant was the likely author of the graffiti on the walls and opined that he was also the likely author of the racial slurs on the blackboard. Based on the handwriting analyses, the statements of faculty members, and the defendant's history of offensive behavior directed toward Ms. Phillips, complaints were issued for malicious destruction of property and violation of civil rights.

The defendant filed a motion to suppress the handwriting analyses and samples, claiming that his school papers containing the samples had been illegally obtained by the East Bridgewater police department. Neither the defendant nor his parents had consented to the high school's release of the defendant's school papers to the police, and the police department had not subpoenaed or obtained a warrant for the papers. He also filed a motion to dismiss contending that the evidence used to charge him (i.e., the handwriting comparison) was illegally obtained. The Commonwealth moved for the production of comprehensive handwriting exemplars from the defendant to be taken using the format recommended by its expert. The judge granted the defendant's motion to suppress and motion to dismiss, and denied the Commonwealth's motion for handwriting exemplars.

2. Expectation of privacy. In order to suppress the fruits of an allegedly unlawful search, the defendant must first show that there has been a "search," and, to show that he has been subjected to some form of "search," he must show that the police have intruded on a reasonable expectation of privacy. See Commonwealth v. Pina, 406 Mass. 540, 544, cert. denied, 498 U.S. 832 (1990); Commonwealth v. Simmons, 392 Mass. 45, 49, cert. denied, 469 U.S. 861 (1984). The defendant has no expectation of privacy in his handwriting, because "[h]andwriting, like speech, is repeatedly shown to the public, and there is no more expectation of privacy in the physical characteristics of a person's script than there is in the tone of his voice." United States v. Mara, 410 U.S. 19, 21 (1973). With regard to school records, we have held that there is no privilege protecting such records from disclosure or restricting the use of such records as evidence at trial. See Commonwealth v. Beauchemin, 410 Mass. 181, 185 (1991) (defendant subpoenaed school records of complaining witness; error to exclude records at trial).

To support his claimed expectation of privacy in his school papers, the defendant points to regulations protecting the confidentiality of "student records." Pursuant to G. L. c. 71, § 34D, the Department of Education (department) has promulgated regulations regarding the maintenance of records at public elementary and secondary schools.² See 603 Code Mass. Regs. § 23.00 (1995). The purpose of these regulations is "to insure parents' and students' rights of confidentiality, inspection, amendment, and destruction of student records and to assist local school systems in adhering to the law." 603 Code Mass. Regs. § 23.01.

Pursuant to the regulations, high school students and their parents have free access to their own "student records." However, third persons may only access "student records" with written consent from the student or the student's parents, unless one of several exceptions identified in the regulations applies and permits release of the records. 603 Code Mass. Regs. § 23.07(4).³ Here, the school did not obtain the consent of the defendant or his parents before disclosing the defendant's papers to the police, nor did the police obtain a warrant or a subpoena for these items. Consequently, if we determine that these assignments are "student records," the release of the papers to a third party would be a violation of the regulations governing such records.

The regulations define the term "student record" as "the transcript and the temporary record, including all information... or any other materials regardless of physical form or characteristics concerning a student that is organized on the basis of the student's name or in a way that such student may be individually identified, and that is kept by the public schools of the Commonwealth." 603 Code Mass. Regs. § 23.02. The term "transcript" is defined as "administrative records that constitute the minimum data necessary to reflect the student's educational progress" and is limited to information identifying the student (name, date of birth, address, telephone number, names and addresses of parents) and course titles, grades, course credits, grade level completed, and the date of completion. Id. The "temporary record" is defined as "all the information in the student record which is not contained in the transcript." Id. Items in the "temporary record" must be "clearly ... of importance to the educational process," including "standardized test results, class rank (when applicable), extracurricular activities, and evaluations by teachers, counselors, and other school staff." Id.

The defendant contends that his written assignments and tests are part of his "student record" because they are "organized on the basis of [his] name or in a way that [he] may be individually identified," and, while in the school's possession, are "kept" by the school. 603 Code Mass. Regs. § 23.02. The defendant also notes that the definition of "student record" is broad, and there is nothing expressly excluding homework or classroom tests from the definition. The defendant invokes the provision that the regulations "should be liberally construed" for the purpose of "insur[ing] parents' and students' rights of confidentiality, inspection, amendment, and...