Commonwealth v. Edwards

• Decision Date: 07 December 2022
• Docket Number: SJC-13242
• Citation: 491 Mass. 1,198 N.E.3d 740
• Parties: COMMONWEALTH v. Christian EDWARDS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

491 Mass. 1

198 N.E.3d 740

COMMONWEALTH

v.Christian EDWARDS.

SJC-13242

Supreme Judicial Court of Massachusetts, Hampden.

Argued September 7, 2022.

Decided December 7, 2022.

David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth.

Joseph N. Schneiderman for the defendant.

The following submitted briefs for amici curiae:

Andrea Harrington, District Attorney, & Patrick Sadlon, Assistant District Attorney, for district attorney for the Berkshire district.

Anne Rousseve, Committee for Public Counsel Services, Chauncey B. Wood, Boston, Jessica J. Lewis, William C. Newman, Northampton, & Matthew R. Segal for Committee for Public Counsel Services & others.

Deborah J. Manus, Boston, for Boston Bar Association.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

GAZIANO, J.

During his trial for violation of an abuse prevention order, see G. L. c. 209A, § 7, the defendant objected when the Commonwealth attempted to introduce in evidence a certificate of service of the order that had not been disclosed in discovery. The Commonwealth previously had disclosed a different certificate of service, for a modification of the order; service of that modification was after the date of the alleged violation. After a sidebar hearing to discuss the defendant's objection, the judge determined that it would be "fundamentally unfair" to the defendant to continue with the trial, or to allow the Commonwealth to retry the defendant, and sua sponte dismissed the case with prejudice. The defendant did not object to the judge's ruling. The Commonwealth's motion for reconsideration was denied. The Commonwealth then appealed from the dismissal and from the denial of its motion for reconsideration to the Appeals Court, and we transferred the case to this court on our own motion.

We conclude that the dismissal with prejudice was an abuse of discretion because there was no egregious prosecutorial misconduct, and the judge could have remedied the discovery violation in some other way, such as by issuing a continuance or excluding introduction of the certificate. As the dismissal was issued for procedural reasons, and not as a finding on the ultimate question of the defendant's guilt, it was functionally equivalent to a declaration of mistrial. We therefore analyze whether double jeopardy principles bar a retrial of the defendant under our jurisprudence on mistrials.

We further conclude that the defendant did not consent to a mistrial because, first, the lack of objection to the dismissal did not constitute implied consent, and second, prior to the judge's ruling, counsel expressed a preference for the case to be resolved by the empanelled jury. Because there was no manifest necessity to declare a mistrial, the Commonwealth is barred from retrying the defendant.¹

1. Background. On June 11, 2018, an abuse prevention order issued against the defendant pursuant to G. L. c. 209A, § 7 (209A order). The order prohibited the defendant from contacting his former girlfriend, and it required him to stay at least fifty yards away from her and to leave and stay away from her residence. According to a police report, on February 22, 2019, at about 7:40 P.M., as the former girlfriend was getting out of her vehicle to enter her house, her brother, who lived with her, told her that he had just seen the defendant's mother's Black Nissan sedan pass by the house. The former girlfriend then drove to a friend's house for safety, at which point her brother called her and told her that the defendant's car kept circling the house.

The police report indicated that the defendant had been served with a 209A order on August 8, 2018, and that the order had an expiration date of July 12, 2019. In March 2019, a complaint issued against the defendant charging him with one count of violating an abuse prevention order. See G. L. c. 209A, § 7. A certificate of service indicates that the defendant was served with a modification of the order on April 22, 2019.

On January 8, 2020, at a pretrial conference on the complaint, a different assistant district attorney stood in for the attorney who later represented the Commonwealth at trial. The trial judge asked the prosecutor, "[F]or your exhibits, it's the restraining order?" She responded, "Yes, your honor." The judge then asked defense counsel whether he had been provided the order, to which defense counsel responded, "Yes." When the judge inquired whether there were "any problems with service," defense counsel responded that he had "been provided discovery."

On the first day of trial, the prosecutor informed the judge that she would not be calling any police officers as witnesses. On the second day of trial, the victim, the defendant's former girlfriend, began to testify. When the prosecutor attempted to show her a copy of the certificate of service for the 209A order, the defendant objected. At sidebar, defense counsel said that he had never seen the document the Commonwealth was attempting to introduce. He explained that the order provided to the defendant during discovery indicated a date of service of April 22, 2019, after the date of the alleged violation, February 22, 2019, while the order that the prosecutor was attempting to introduce indicated a date of service of August 8, 2018, prior to the date of the alleged violation. Counsel argued that it would be a violation of the rules of discovery for the Commonwealth to introduce the earlier 209A order. He noted that, at the pretrial conference, the prosecutor had asked him whether she had given him the Commonwealth's discovery, and counsel had shown the prosecutor what he had received so that she could compare it to her own files. The prosecutor had confirmed that counsel had received what she believed to be the proper documents.

After hearing this explanation, the judge pointed out that, if counsel had believed that service had been made after the alleged violation, then he could have filed a motion to dismiss. Counsel responded, "And then they could have re-complained it and my client would be back in the position he finds himself in today. That's why I wanted to [e]mpanel the jury, so that he could be found not guilty of this offense." The judge replied, "I'm not sure about [re-complaining]. If that were the actual date of service, then they would not have been able to [re-complain] it." Counsel noted that the police report indicated a date of service prior to the alleged violation, and added, "I could not have filed a [ DiBennadetto ] motion to dismiss because the application for complaint said that he was served prior to the incident."²

The prosecutor argued that the Commonwealth should not be precluded from introducing the certificate of service, because defense counsel was on notice of the August 8, 2018 service from the date indicated in the police report, he had had the opportunity to raise the issue of service at the trial-readiness conference, and he could have obtained a copy of the 209A order from the clerk's office. Counsel responded,

"the position of the [prosecutor] and the court cannot be that it is my job to help the government prove the case against [the defendant]. The government gave me the evidence that they intended to use at trial, and I set it up for the trial based on the evidence that they gave me and my assessment of the strengths of the case. ... I can't be expected to, and I won't, help the government prove their case against [the defendant], [or] point out fatal flaws in their cases for them so that they can prove their cases."

The judge asked the prosecutor whether she had a copy of what had been provided to the defendant during discovery. The prosecutor responded that she "was not the original [assistant district attorney (ADA)] that gave that copy. ... The copy was given back on June 18th of 2019 by another ADA, not myself."

Following the sidebar discussion, the judge called a recess; immediately after the recess, the judge ruled on the defendant's objection. The judge stated that he would not "fault the defense attorney for not trying to seek a certified copy" of the 209A order mentioned in the police report prior to trial. In addition, the judge observed that, "there were multiple prosecutors in the life of this case. However, this assistant district attorney in front of me is the one who is, at this point, on the hook for this."

The judge said that he had considered all of the options, including declaring a mistrial. The judge declined to declare a mistrial because it "would allow the Commonwealth to ... get a new trial date." At the subsequent trial, the Commonwealth would be able to introduce the previously undisclosed certificate of service, after having certified prior to this trial that discovery was complete. The judge explained,

"The Commonwealth is really bound by their trial readiness and [their certification] that all the discovery was complete. It was, now, apparently incomplete, and incomplete as to a fundamental theory of proof for the Commonwealth. ... [A]ll I can say is that the other prosecutors need to communicate with each other."

The judge also decided that, even if the earlier certificate of service were to be excluded at a subsequent trial, "it would be unfair to the defendant to go forward" with the trial, because the Commonwealth might then have a police officer testify as to the earlier date of service, which would be "fundamentally unfair" to the defendant. Accordingly, the judge concluded that "the sanction [is] that the matter will be dismissed with prejudice."

The prosecutor moved to reconsider. In her motion, she stated that she was unable to confirm that the Commonwealth had provided the defendant with the correct certificate of service during pretrial discovery. At a hearing on the motion, the prosecutor reiterated that defense counsel willfully had concealed from the judge his belief that the Commonwealth had disclosed an order that had been served after the date of the alleged...