Commonwealth v. Gonsalves

• Citation: 739 NE 2d 1100,432 Mass. 613
• Parties: COMMONWEALTH v. JOHN D. GONSALVES.
• Decision Date: 02 October 2000
• Court: United States State Supreme Judicial Court of Massachusetts

432 Mass. 613

739 NE 2d 1100

COMMONWEALTH v. JOHN D. GONSALVES.

Supreme Judicial Court of Massachusetts, Plymouth.

October 2, 2000.

November 9, 2000.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & SOSMAN, JJ.

Robert C. Thompson, Assistant District Attorney, for the Commonwealth.

John M. Thompson (J. Drew Segadelli with him) for the defendant.

Kevin M. Burke, District Attorney, & James A. Janda, Assistant District Attorney, for District Attorney for the Eastern District & others, amici curiae, submitted a brief.

GREANEY, J.

We are concerned in this case with an assertion by the office of the district attorney for the Plymouth district (district attorney), that an order entered under Mass. R. Crim. P. 15 (d), as appearing in 422 Mass. 1501 (1996), directing that office to pay the attorney's fees and costs of the defendant's private counsel, is unconstitutional. We reject the argument. The following summarizes the background of the case. The defendant was charged in the Superior Court with trafficking in cocaine. A judge in that court allowed the defendant's motion to suppress the cocaine, and his statements to a State trooper, because the trooper had "no objective" basis to order the defendant, who was sitting in the rear of a taxicab stopped by the trooper for a suspected traffic violation, to get out of the taxicab. A single justice of this court allowed the Commonwealth's application under Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996), to pursue an interlocutory appeal from the order granting the motion to suppress, and the appeal was transferred to the Appeals Court. That court affirmed the suppression order, relying on case law under art. 14 of the Declaration of Rights of the Massachusetts Constitution, concluding, as did the Superior Court judge, that the trooper's order was constitutionally unlawful. Commonwealth v. Gonsalves, 46 Mass. App. Ct. 186 (1999). We granted the Commonwealth's application for further appellate review. We also concluded that the trooper's order was invalid under case law interpreting art. 14. In so doing, we declined to adopt the holdings of Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977), and Maryland v. Wilson, 519 U.S. 408, 415 (1997), that state a police officer does not violate the Fourth Amendment to the United States Constitution when the officer in a routine traffic stop orders a passenger out of a vehicle. Commonwealth v. Gonsalves, 429 Mass. 658 (1999).

The defendant's counsel, who was privately retained, applied under rule 15 (d) for payment of his attorney's fees and costs in connection with our decision. A single justice ordered payment of $1,536.54, and directed that the attorney's fees and costs be paid by the Administrative Office of the Trial Court (AOTC), if funds were available therein for payment, and, if not, by the district attorney.¹ Commonwealth v. Murphy, 423 Mass. 1010, 1011 (1996). The AOTC did not have an account or funds to satisfy the order, so the defendant's counsel looked to the district attorney for payment.

The district attorney refused to make payment, stating that appropriated funds were lacking to pay the order, and that it was "void ab initio" because it unconstitutionally required payment by prosecutors. Further efforts by the defendant's counsel to obtain payment from the district attorney were equally unsuccessful. The defendant's counsel then filed a motion seeking enforcement of the order for payment against the district attorney. After a hearing, a single justice referred the motion to the full court for argument and decision.

1. There is merit to the defendant's argument that the district attorney waived his constitutional challenge by failing to raise it before the single justice when the award under rule 15 (d) was made. The district attorney did not assert a constitutional challenge until several months had passed after the entry of the order, and then only when the defendant's counsel made demand for payment. Because the constitutional issue is important to the administration of justice and will surely arise again in a timely fashion, we shall proceed to resolve it now.² See McLeod's Case, 389 Mass. 431, 434 (1983); Commonwealth v. Dunigan, 384 Mass. 1, 5 (1981); Wellesley College v. Attorney Gen., 313 Mass. 722, 731 (1943).

2. To place discussion of the constitutional argument in context, we describe the purpose of G. L. c. 278, § 28E, and rule 15, which implements the statute. We also set forth the reasoning behind the direction in Commonwealth v. Murphy, supra, that payment of orders entered under rule 15 (d), is, in the absence of payment by AOTC, to be made by prosecutors.

General Laws c. 278, § 28E, grants the Commonwealth the right to appeal from a suppression order entered in the Superior Court, and rule 15 sets forth the procedure to effectuate that right. Without the right, the Commonwealth could not directly appeal from a suppression order. The provision of a right of appeal for the Commonwealth is desirable. There has been considerable growth of constitutional law in the areas of search and seizure and confessions. Where suppression has been granted, the Commonwealth should not be left stymied in its efforts to seek relief or to try the accused. Further, "the importance of allowing the government to appeal goes beyond the significance of any particular prosecution. The rules on search and seizure and confessions are [often] characterized by a ... degree of uncertainty. If lower court rulings restricting police conduct cannot be appealed and if inconsistent lower court decisions can be resolved only by an appeal by a defendant, it is most difficult to formulate law enforcement policies" (footnote omitted). 5 W.R. LaFave, Search and Seizure § 11.7 (b), at 389 (3d ed. 1996), quoting President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts, at 47-48 (1967). Exercise of the right of appeal by the Commonwealth often results in the development of State constitutional law, as the principal opinion in this case, Commonwealth v. Gonsalves, 429 Mass. 658 (1999), illustrates. Prosecutors have an obligation to see that clear rules exist both to guide the police and to protect the constitutional rights of Massachusetts citizens.

We next describe the basis underlying the requirement in rule 15 (d) for the payment of attorney's fees and costs on an application by the Commonwealth to appeal from a suppression order. General Laws c. 278, § 28E, inserted by St. 1967, c. 898, § 1, prior to the adoption of the rules of criminal procedure, stated in part as follows:

"If the appeal or application therefor is taken on behalf of the commonwealth the defendant shall be released on personal recognizance, and shall be reimbursed his costs of appeal together with reasonable attorneys' fees, subject to the approval of the court.

"Rules of practice and procedure with respect to appeals authorized by this section shall be the same as those now applicable to criminal appeals under sections thirty-three A through thirty-three G, inclusive."

On the adoption of the rules of criminal procedure on July 1, 1979, § 28E was rewritten, see St. 1979, c. 344, § 45, to conform the statute to the rules (effective July 1, 1979, see St. 1979, c. 344, § 51). No provision was made by the Legislature in the new § 28E concerning the award of attorney's fees and costs, because that matter had been dealt with by rule 15 (d) of the new rules of criminal procedure. The absence, therefore, of any language in the new § 28E concerning attorney's fees and costs is of no significance.³ The provision for attorney's fees and costs is a hybrid of statute and rule.⁴

Rule 15 (d) provides a needed measure of protection to the rights of defendants by seeking to equalize the resources of the defendant with those of the Commonwealth. A defendant who is able to retain private counsel may not have the funds for an interlocutory appeal from a suppression motion on which he has prevailed. The lawyer should not be placed in the untenable position of either volunteering his services on the appeal or abandoning the defendant. These considerations are present in every case and especially operative when the case involves a significant constitutional issue on which the defense bar has an equal interest with the prosecution in establishing the law.

The appropriate source of funds for paying an award under rule 15 (d) to a defendant's private counsel (subject to the Legislature's final determination) was decided in Commonwealth v. Murphy, supra. As that case points out (id. at 1011), AOTC had been paying the bills for some time. The orders entered after the Murphy decision still direct that "[t]o the extent that AOTC has appropriated funds to pay these bills, it should pay these claims." Id. AOTC presently does not have an account or funds to satisfy the orders. In that situation, the Murphy decision held that the prosecutor's office that had applied for leave to appeal was required to bear the costs. Id. In so holding, we rejected the prosecutor's argument that the costs should not be assigned to his office, but properly belonged to the judiciary. Id.⁵

3. We turn now to the merits of the appeal. The district attorney claims that an order entered under rule 15 (d) is unconstitutional because the order violates both the prosecutor's right of equal access to the courts and the separation of powers between the judiciary and the other branches of government.

There is no merit to the claim that a rule 15 (d) payment order violates a prosecutor's constitutional right of equal access to the courts by "singling out prosecutors and effectively penalizing them for exercising their right to pursue an appeal." Article 11 of the Declaration of Rights of the Massachusetts Constitution, set forth below,⁶ affords no constitutional protection to prosecutors. As a representative of a district attorney's office,...