Irwin v. Commonwealth

• Decision Date: 15 July 2013
• Parties: John R. IRWIN v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

465 Mass. 834

992 N.E.2d 275

John R. IRWIN

v.COMMONWEALTH.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued March 7, 2013.

Decided July 15, 2013.

David Hartnagel, Assistant Attorney General, for the Commonwealth.

Robert S. Sinsheimer (David Scott, Mansfield, with him) for the plaintiff.

Alex G. Philipson, pro se, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

LENK, J.

In this case we consider whether the Commonwealth may pursue an interlocutory appeal, under the doctrine of present execution, of the determination that a plaintiff is an eligible claimant as defined under the erroneous convictions statute, G.L. c. 258D.¹ We consider also whether a conviction that was overturned because the Commonwealth introduced evidence of the plaintiff's prearrest silence as purportedly establishing consciousness of guilt was overturned “on grounds which tend to establish” his innocence, such that he is eligible to pursue his claim for compensation for an erroneous felony conviction pursuant to G.L. c. 258D, § 1(B)(ii).

Because the erroneous convictions statute provides only a limited waiver of the Commonwealth's sovereign immunity, we conclude that the doctrine of present execution applies to claims brought under that statute, and thus that interlocutory appeal is appropriate. While we conclude that “grounds which tend to establish” an individual's innocence are not necessarily limited to the exclusion of exculpatory evidence at trial, we nonetheless conclude also that the plaintiff, John R. Irwin, is not eligible to pursue his compensation claim, because the grounds on which his conviction was reversed were not “probative of the proposition that [he] did not commit the crime.” Guzman v. Commonwealth, 458 Mass. 354, 362, 937 N.E.2d 441 (2010)( Guzman ), quoting Guzman v. Commonwealth, 74 Mass.App.Ct. 466, 477, 907 N.E.2d 1140 (2009).

Background and prior proceedings. We summarize the facts based on the detailed discussion in the Appeals Court's decision, see Commonwealth v. Irwin, 72 Mass.App.Ct. 643, 893 N.E.2d 414 (2008)( Irwin ),² reserving some facts for later discussion. The incident resulting in the overturned conviction occurred on July 26, 2003, at the home of Virginia Griffin.³ The complainant, the daughter of a friend of Griffin, was six years old at the time of the alleged offense. On the evening of July 25, the complainant, her mother, and her brother were visiting Griffin, Griffin's then live-in boyfriend, Gary Closker,⁴ and Griffin's two sons, nine month old Brian and three year old Paul,⁵ as was Irwin. The children were lying on the living room floor watching movies. Irwin left the apartment at some point during the movies.

When the movies ended, the complainant had fallen asleep on the living room floor. In order not to wake her, the complainant's mother and Griffin agreed that the complainant would spend the night at Griffin's apartment, and the complainant's mother would pick her up the next morning. Her mother and her brother then left. Griffin moved the complainant to the large bed in the apartment's single bedroom,⁶ and put Brian in the crib in that room. ⁷ Griffin and Closker then went to sleep on the living room floor.

The complainant testified on direct examination that she woke up the next morning and found Irwin in the bed with her. He was “playing with his penis” and asked her to touch his “toy.” She did so, at first not knowing what it was. When she realized what it was, because she had seen her younger brother's, she ran into the living room, woke up Griffin and Closker, and told Griffin what had happened. The child testified that Griffin telephoned the police because Irwin would not get out of the bed and that, when police arrived, Irwin left the bedroom.⁸

Griffin testified ⁹ that she woke up on the morning of July 26, when Irwin entered the apartment ¹⁰ and went into the bedroom. She saw him take something from the bedroom closet, which was next to the door into the bedroom, and then go into the bathroom. When Irwin came out of the bathroom, he and Griffin began arguing because he had not telephoned in advance and she had not given him permission to be there.¹¹ When Irwin refused to leave or to return the key to the apartment, she telephoned police. Police arrived and removed Irwin from the premises.¹²

Several hours later, while the complainant was watching television, she told Griffin that there was a “strange guy” in the bed who wanted the complainant to “touch his Charlie,” but Griffin saw no one in the bedroom. Griffin thought that the statement did not “make sense” and took no further action. The complainant's father contacted police later that afternoon, when the child told him what had happened at Griffin's house.

Irwin testified on his own behalf. He said that he had come to the apartment at approximately 7 a.m., after having been up all night, to get some money from his coat hanging in the closet there. He reached into the coat pocket and removed a twenty dollar bill while standing within a step of the bedroom door; he did not see the complainant or anyone else in the room, and did not see the complainant at any time that day. He and Griffin got into an argument when he refused to return the key to the apartment, and Griffin telephoned police. He returned the apartment key when police arrived, but kept the key to the storage bin. Later that day, he met Closker at a bar.

Detective Richard Potter, the officer assigned to the investigation after the complainant's father's report, testified concerning his interviews of Griffin in the days following the incident, and his interview of Irwin in January, 2004.¹³ Potter testified further, without objection, that he had made numerous unsuccessful efforts to contact Irwin, through Griffin; that Irwin had failed to attend an interview scheduled for September, 2003, after Irwin and Potter had spoken by telephone; and that Irwin may have avoided contacting him for several months thereafter. In December, 2003, Potter was again able to reach Irwin, who met with police in January, 2004. There was no evidence that Irwin offered a reason for the three-month delay. On cross-examination, without objection, Griffin testified that she had informed Irwin of Potter's efforts to reach him and of the reasons for Potter's investigation. She testified further that Irwin had no telephone number and that she had informed Potter he could try to reach Irwin through his mother.

Irwin's first trial, on October 18, 2005, ended in a mistrial when the jury were unable to reach a verdict. His second trial began on October 20. At this trial, the prosecutor emphasized in direct examination and cross-examination, again without objection, Irwin's delay in responding to police requests to speak to him and his failure to attend the scheduled interview in September, 2003; she argued in closing that an innocent person accused of such a crime would have wanted to come forward and speak to police right away. On October 21, Irwin was convicted of indecent assault and battery on a child under fourteen. He was sentenced to two and one-half years' incarceration, with fifteen months committed. Ultimately, due to parole violations, he served approximately twenty-seven months. On September 15, 2008, the Appeals Court vacated Irwin's conviction and granted him a new trial on the grounds that the use of Irwin's prearrest silence as evidence of consciousness of guilt was improper both under common-law evidentiary rules and as constitutionally impermissible comment on his privilege against self-incrimination. In August, 2009, the Commonwealth filed a nolle prosequi.

In March, 2011, Irwin filed a complaint in the Superior Court pursuant to G.L. c. 258D, seeking compensation for an erroneous felony conviction. The Commonwealth moved to dismiss the complaint, arguing that Irwin was not among the class of claimants eligible to pursue a claim for relief under the erroneous convictions statute. Concluding that Irwin is eligible to pursue his claim for compensation under that statute, a Superior Court judge denied the Commonwealth's motion to dismiss the complaint and for partial judgment on the pleadings, and allowed Irwin's cross motion for partial judgment on the pleadings.The Commonwealth filed an interlocutory appeal in the Appeals Court, and we transferred the case to this court on our own motion.

Discussion. An individual who has been convicted by the Commonwealth of a felony resulting in incarceration,¹⁴ whose conviction has been vacated or reversed by a court of the Commonwealth, may seek compensation from the Commonwealth, where the indictment or complaint has been dismissed, a nolle prosequi has been entered, or the individual was found not guilty at a new trial, if the judicial relief was granted “on grounds which tend to establish the innocence of the individual.” G.L. c. 258D, § 1(B).¹⁵

Once an individual has established that he or she is within the class of persons eligible to pursue a compensation claim, in order to prevail and recover damages at trial, he must prove, by clear and convincing evidence, inter alia, that he did not commit the charged offense.¹⁶G.L. c. 258D, § 1(C).

[465 Mass. 840]1. Doctrine of present execution. As an initial matter, we consider whether the Commonwealth is entitled to pursue an interlocutory appeal of the denial of a motion to dismiss a G.L. c. 258D claim under the doctrine of present execution.¹⁷

Ordinarily, the Commonwealth is immune from suit unless it waives its right to sovereign immunity and consents to being sued. See, e.g., Brum v. Dartmouth, 428 Mass. 684, 688, 704 N.E.2d 1147 (1999). Where the Commonwealth does choose to waive its sovereign immunity, it can be sued “only in the manner and to the extent expressed [by the] statute.” Boxford v. Massachusetts Highway Dep't, 458 Mass. 596, 601, 940 N.E.2d 404 (2010), quoting DeRoche v. Massachusetts Comm'n...