Commonwealth v. J.F.

• Decision Date: 05 May 2023
• Docket Number: SJC-13334
• Parties: COMMONWEALTH v. J.F.
• Court: United States State Supreme Judicial Court of Massachusetts

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COMMONWEALTH v. J.F.

No. SJC-13334

Supreme Judicial Court of Massachusetts, Plymouth

May 5, 2023

Heard: February 8, 2023

Indictments found and returned in the Superior Court Department on February 28, 2014. A petition to seal the record, filed on August 27, 2021, was heard by Brian A. Davis, J.

The Supreme Judicial Court granted an application for direct appellate review.

Patrick Levin, Committee for Public Counsel Services, for the defendant.

Arne Hantson, Assistant District Attorney, for the Commonwealth.

The following submitted briefs for amici curiae:

Alyssa Golden, Ann Maurer, Elizabeth Connor, & Leigh Woodruff for Community Legal Aid.

Mason A. Kortz, Tamara S. Wolfson, & Paul M. Kominers for Upturn, Inc.

Pauline Quirion for Greater Boston Legal Services &amp another.

Chinh H. Pham for Boston Bar Association.

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

CYPHER, J.

On March 10, 2014, the defendant, J.F., was arraigned on two counts of rape while armed with a firearm, G. L. c. 265, § 22; one count of armed and masked robbery, G. L. c. 265, § 17; one count of armed kidnapping with sexual assault, G. L. c. 265, § 26; one count of assault with intent to rape, G. L. c. 265, § 24; and one count of carrying a firearm without a license, G. L. c. 269, § 10 (a). In December 2015, after a jury trial, he was acquitted on one count of rape while armed, assault with intent to rape, and carrying a firearm without a license.^[1] The jury deadlocked on the remaining three counts, resulting in the declaration of a mistrial. Subsequently, in March 2018, after determining that the alleged victim was unable to testify at a retrial of those counts due to a relapse in her substance use disorder, the Commonwealth filed a nolle prosequi. Consequently, the defendant suffered no convictions resulting from the charges. On August 27, 2021, the defendant filed a petition pursuant to G. L. c. 276, § 100C (§ 100C), opposed by the Commonwealth, to seal his criminal record as to both the counts on which he was acquitted and the counts for which a nolle prosequi was filed. After a hearing, a judge denied the defendant's petition in writing. The defendant appealed. On appeal, the defendant argues that the plain language of § 100C requires the sealing of records in cases ending in findings of not guilty, no probable cause, or a no bill by a grand jury, unless the defendant objects to such sealing. He asserts that this court's holding in Commonwealth v. Pon, 469 Mass. 296 (2014), resolves any concern surrounding a right of public access under the First Amendment to the United States Constitution. He further argues that the judge abused his discretion in denying the petition with respect to the counts that were nol prossed because he misapplied the "good cause" standard, committing errors of fact and judgment in weighing the factors relevant to his decision. For the reasons articulated infra, we hold that, consistent with Pon, a closed case that ends in an acquittal, a no bill from a grand jury, or a finding of no probable cause by the court is not a record subject to a First Amendment presumption of access. We further hold that the Legislature clearly abrogated the common-law presumption of access with respect to these records by its plain language in § 100C, first par. Regarding the counts in which the Commonwealth entered a nolle prosequi, we conclude that the judge abused his discretion when weighing the relevant interests and factors. Therefore, we remand the case for further proceedings consistent with this opinion.^[2]

Background.

On February 28, 2014, a grand jury returned six indictments against the defendant, charging him with two counts of aggravated rape, one count of armed and masked robbery, one count of armed kidnapping with sexual assault, one count of assault with intent to rape, and one count of unlawful possession of a firearm. These charges stemmed from allegations that the defendant, who knew the alleged victim, entered her car while masked, told her that he had a gun, and drove her to multiple automated teller machines attempting to have her withdraw cash from her bank account. After the assailant was unable to procure cash due to a lack of funds in the victim's account, he drove her to a parking lot, raped her, and fled. On December 9, 2015, a jury was empanelled, and trial began. On December 16, the trial judge allowed the defendant's motion for required findings of not guilty on the charges of assault with intent to rape and unlawful possession of a firearm.^[3] On that same day, the jury acquitted the defendant on the first count of aggravated rape. The jury were deadlocked as to the remaining three charges.

The case was continued for the scheduling of a new trial, and the defendant's bail was reduced. In addition to multiple continuances by agreement, the Commonwealth advanced and continued pretrial conferences and the trial date on several occasions. On April 4, 2017, a judge found the alleged victim unavailable for purposes of trial. The Commonwealth moved to present the previous testimony of the unavailable witness, the alleged victim, in the second trial. That motion was denied. On July 10, the defendant filed a motion for production of the alleged victim's psychiatric treatment records, which was allowed. The case was continued to November 27 for trial. The parties later jointly requested that the trial date be rescheduled. On March 21, 2018, the Commonwealth filed a nolle prosequi as to the remaining three counts: the remaining rape count, robbery, and kidnapping with sexual assault.

On August 27, 2021, the defendant filed a petition to seal his record in connection with the case.^[4] The docket indicates that the case was continued to October 18 for a "[first] stage motion to seal," where the defendant's presence was waived. On October 18, the matter was taken under advisement, and the Commonwealth filed its opposition on October 20. On January 6, 2022, the judge scheduled a hearing for "[s]tage [two] motion to seal," but the hearing was continued due to the absence of an interpreter for the defendant.

After another continuance for COVID-19 reasons, the hearing was held on February 9, 2022. At the hearing, the parties and the judge discussed Pon at length. The judge indicated his belief that Pon requires "a higher standard" for cases ending in not guilty verdicts: "the defendant must demonstrate that the value of sealing clearly outweighs the constitutionally-based value of the record remaining open to society."^[5]

For the counts in which a nolle prosequi entered, the judge stated that the "defendant must establish that good cause exists for sealing, but it's a lessened burden on the defendant, and the [judge] must balance the interest at stake." Defense counsel asserted that in Pon, 469 Mass. at 311, this court rejected the argument that the records of closed criminal proceedings resulting in an entry of nolle prosequi or dismissal are subject to a First Amendment presumption of public access. The judge responded that the relevant holding only applied to the nolle prosequi counts at issue.^[6] Defense counsel went on to argue that the plain language of § 100C requires sealing for the counts on which the defendant was acquitted. Discussing the factors in favor of sealing, the defendant pointed out that it had been about four years since the remaining counts had been nol prossed, and approximately six years since the defendant's release, with the defendant accumulating no new charges since then. He was aged forty-four at the time of the hearing, and he had no criminal record aside from the relevant charges and a dismissed charge of operating a motor vehicle with a suspended license. The defendant, although he has a job as a truck driver, has been unable to get better paying jobs as a result of his record in this case.^[7] He explained the stigma that he suffers as a result of these charges. The defendant acknowledged that the nature and reason of the disposition, particularly the nol prossed counts, may not weigh in his favor.^[8] The judge asked counsel about the publicity surrounding the case. The defendant reported one article had appeared in a local newspaper in 2014 about the case. The Commonwealth noted that a news article about the case appeared as a top result when searching the defendant's name on the Internet. The Commonwealth then summarized the facts of the case.

After testifying in the case, the alleged victim, who suffered from substance use issues, relapsed as a result of the trauma from her testimony. The Commonwealth continued the case several times to "try[] to get her in a better position to be able to companies. The defendant stated that the factory job demanded his passport, and his criminal record had to be clean. From a rideshare company, after he filled out an application, he received a notice that "there's something that's being presented that does not allow [him] to work." testify, and ultimately, she wasn't." When another judge denied the Commonwealth's motion to use her previous trial testimony at the second trial, the Commonwealth had "no choice" but to file a nolle prosequi as to the remaining charges. The Commonwealth read a letter from the family of the alleged victim, who opposed the sealing of the defendant's record, which detailed the severe psychological distress and pain that she has suffered and continues to suffer as a result of the violent crimes committed against her. On February 14, 2022, in a written decision, the judge denied the defendant's motion to seal his record in its entirety. The defendant appealed, and we allowed his application for direct appellate review.

Discussion.

1. Presumption of public...