Commonwealth v. Harwood

• Decision Date: 02 May 2000
• Citation: 432 Mass. 290,733 NE 2d 547
• Parties: COMMONWEALTH v. FRANK G. HARWOOD, JR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

432 Mass. 290

733 NE 2d 547

COMMONWEALTH v. FRANK G. HARWOOD, JR.

Supreme Judicial Court of Massachusetts, Worcester.

May 2, 2000.

August 16, 2000.

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

Erin K. Olson, Assistant Attorney General, for the Commonwealth.

David L. Kelston for the defendant.

MARSHALL, C.J.

We consider whether it was an abuse of discretion for a judge to suppress the testimony of a Commonwealth witness as a remedy for a missing file containing documents that the defendant asserts were exculpatory. A key legal question is whether any mishandling of that file by the insurance fraud bureau (IFB) can be attributed to the Commonwealth. The defendant, Frank G. Harwood, Jr., was indicted by a special grand jury on charges of insurance fraud and larceny over $250 based on evidence that he may have filed a fraudulent workers' compensation claim with ITT Hartford Insurance Company (ITT Hartford). The claim involved an injury that reportedly occurred on June 29, 1989, while he was employed by the Scola Construction Company (Scola). The Commonwealth asserts it was prepared to show that the defendant had defrauded ITT Hartford by submitting a false claim of concurrent employment at Strand's Ski Shop (Strand's) that led to ITT Hartford's paying the defendant higher workers' compensation benefits than if he had not been working at Strand's at that time.¹

The defendant's claim of concurrent employment was allegedly supported by a document in the missing file at issue here — a February 5, 1990, letter on Strand's letterhead purportedly signed by Leif Mikkelsen (February 5 letter), a coowner of Strand's, attesting to the defendant's concurrent employment.² The Commonwealth asserts that the evidence indicates the signature on the lost February 5 letter was not Mikkelsen's. The defendant claims that handwriting analysis on the lost original would have nullified Mikkelsen's testimony against the defendant by establishing that, when he denied the signature on the letter was his, he lied as an immunized witness before the grand jury.

After an evidentiary hearing, the judge ruled that Mikkelsen's testimony would be suppressed. A single justice of this court allowed the Commonwealth's application for interlocutory appeal. The case was transferred to the Appeals Court, and we transferred it to this court on our own motion. We affirm.

1. Background. We describe the facts in some detail, based on the judge's findings and the record, to elucidate our discussion of the legal issues pertaining to the missing documents.

a. The workers' compensation claim. When the defendant filed his workers' compensation claim in 1989 for an injury to his ankle while working at Scola, ITT Hartford accepted the claim and began paying him temporary total disability benefits of $291.67 a week. The defendant's attorney then submitted a claim for concurrent employment benefits on his client's behalf, submitting various documents in support of the claim, including the February 5 letter, and requested that ITT Hartford increase the defendant's weekly workers' compensation payments. ITT Hartford in turn requested and obtained a completed Form 117 "Average Weekly Wage Computation Schedule" (Form 117) — purportedly prepared by Mikkelsen — that listed the defendant's weekly compensation from Strand's from April through June, 1989. On the basis of these documents, ITT Hartford increased his weekly compensation to the maximum allowed by law, $444.20 a week.³

Five years later, in February, 1994, the IFB received an anonymous call on its fraud hotline suggesting the defendant's claim was fraudulent. The IFB began an investigation and ultimately referred the case for prosecution to the Attorney General's insurance fraud division in December, 1995. An assistant attorney general was assigned in 1996 to investigate and prosecute the case.

The IFB also continued to investigate, interviewing Mikkelsen on several occasions. There was evidence Mikkelsen gave the IFB inconsistent statements concerning the defendant's concurrent employment. In a September, 1995, interview, Mikkelsen reportedly confirmed the defendant's concurrent employment and wages at Strand's from April to June of 1989.⁴ After signing a nonprosecution agreement with the Commonwealth,⁵ however, Mikkelsen testified before a special grand jury in February, 1997, that he signed a form giving the dates of the defendant's employ at Strand's as April 22, 1989, through June 29, 1989, at a weekly pay of $405, even though the defendant was not employed there during those dates. Instead, Mikkelsen testified, the defendant had done only one day's masonry work at Strand's during that period. Mikkelsen testified that when he told the defendant the dates on the form were incorrect, the defendant responded, "That's how they want it written up," which Mikkelsen interpreted to mean that was how the defendant's lawyers wanted the pay record written up. According to Mikkelsen's grand jury testimony, he was busy, the defendant wanted the form signed, and Mikkelsen did so out of "expedience, probably shouldn't have." In his testimony, Mikkelsen denied he signed the February 5 letter, and denied he had seen the letter other than when the prosecutor showed it to him.⁶ In February, 1997, the special grand jury indicted the defendant.

b. The missing documents. The original Form 117 from the ITT Hartford claim file is available for trial, but the original February 5 letter and the remainder of the claim file were apparently "lost." The judge found that between January, 1996, and February, 1997, the file was in the custody of an IFB investigator.⁷ He found that on or about February 3, 1997, ITT Hartford asked the investigator to return the file. The principal IFB investigator for the case, Steven Combes, did not retain the original of the February 5 letter. Combes testified that shortly after returning the file, however, he went back to ITT Hartford to obtain one original document from the file, the Form 117, for handwriting analysis by the Commonwealth's expert. In October, 1997, the defendant filed a motion for scientific tests including handwriting analyses and for production of documents, requesting production of the originals of the Form 117 and the February 5 letter.⁸ In response, the Commonwealth agreed to provide "reasonable access to original documents at the Office of the Attorney General and under the supervision of its personnel."⁹ The defendant's motion was allowed by the judge in December, 1997. The original of the February 5 letter, however, was not produced; the then prosecutor did not inform the defendant that the letter was not in her possession and she made no attempt at that time to retrieve the file from ITT Hartford. The judge later found that, at the time the motion was allowed, the file, including the original of the February 5 letter, was in ITT Hartford's Burlington, Massachusetts, office.

On April 30, 1998, June 24, 1998, and again on June 29, 1998, the defendant requested the original of the February 5 letter, again to no avail. In July, 1998, for the first time, the Commonwealth requested the original file from ITT Hartford. It was informed at that time that the file had been "lost." Finally, in August, 1998, the prosecutor informed defense counsel that the file had been lost in April or May, 1998.¹⁰ On September 4, 1998, the defendant filed a motion for an evidentiary hearing concerning "[c]ritical" evidence — the February 5 letter — that has been lost or destroyed.

On October 1, 1998, the judge allowed a motion in limine permitting the Commonwealth to use copies in place of the missing originals. The defendant's document examiners reported, however, that "[b]ased upon the quality of the photocopied signature examined, authorship of the `[Leif] Mikkelsen' signature [on the February 5 letter] cannot be determined at this time. An examination of the original document would establish a more conclusive opinion." (Emphasis in original.)

2. The remedy for the missing evidence. The general rule is that the Commonwealth has a duty to preserve exculpatory evidence for the defendant to inspect, examine, or perform tests on. Commonwealth v. Neal, 392 Mass. 1, 11-12 (1984). See Commonwealth v. Woodward, 427 Mass. 659, 678 (1998). "We have repeatedly stressed the need for prosecutors ... to do their utmost to preserve and present `exculpatory evidence which is available to the prosecution.'" Commonwealth v. Charles, 397 Mass. 1, 13-14 (1986), quoting Commonwealth v. Redding, 382 Mass. 154, 157 (1980). When a defendant claims he is prejudiced by missing evidence, a judge must weigh the materiality of the evidence and the potential prejudice to the defendant, as well as the culpability of the Commonwealth and its agents. See Commonwealth v. Hunter, 426 Mass. 715, 718 (1998), quoting Commonwealth v. Sarourt Nom, 426 Mass. 152, 159 (1997); Commonwealth v. Olszewski, 401 Mass. 749, 757 (1988), S.C., 416 Mass. 707 (1993), cert. denied, 513 U.S. 835 (1994). Negligence and inadvertence are considered culpable for purposes of this weighing. Commonwealth v. Olszewski, supra at 757 n.7. As we shall describe, the judge applied the correct test and we "will not disturb [his] findings in such a circumstance in the absence of clear error." Commonwealth v. Waters, 420 Mass. 276, 279 (1995).

a. Materiality and potential prejudice. The judge concluded that the file at issue, including the original of the February 5 letter, was material to the defendant's case and there was a strong possibility that the file contained exculpatory evidence. "Evidence is material if, in considering the entire record, it creates a reasonable doubt as to the defendant's guilt that would not otherwise exist." Commonwealth v. Otsuki, 411 Mass. 218, 231 (1991), citing Commonwealth v. Wilson, 381 Mass. 90, 107 (1980). See Commonwealth v. Phoenix, 409 Mass. 408, 414 (1991). The judge reasoned that, if...