WBZ-TV4 v. District Atty. for Suffolk Dist.

• Decision Date: 19 November 1990
• Docket Number: WBZ-TV4
• Citation: 408 Mass. 595,562 N.E.2d 817
• Parties: , 18 Media L. Rep. 1939 v. DISTRICT ATTORNEY FOR THE SUFFOLK DISTRICT (and a companion case).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 817

562 N.E.2d 817

408 Mass. 595, 18 Media L. Rep. 1939

WBZ-TV4 v. DISTRICT ATTORNEY FOR THE SUFFOLK DISTRICT (and a companion case).

Supreme Judicial Court of Massachusetts Suffolk.

Argued Sept. 7, 1990.

Decided Nov. 19, 1990.

George J. Skelly (Philip Y. Brown, Boston with him) for plaintiff.

Marina Khazanov, Asst. Dist. Atty. (David B. Mark, Asst. Dist. Atty., with her) for the Dist. Atty. for the Suffolk Dist.

Before LIACOS, C.J., and NOLAN, LYNCH and GREANEY, JJ.

GREANEY, Justice.

In these consolidated appeals, WBZ-TV4 (WBZ) challenges orders of two single justices of this court denying WBZ access to materials in the so-called Carol Stuart murder case. The materials in question involve: (a) the videotape of a lineup at which Charles Stuart identified William Bennett as the man who had shot Stuart and his wife, Carol Stuart; and (b) a tape-recorded statement of a witness in the investigation.

Carol Stuart was murdered, and her husband, Charles Stuart, wounded, as they were driving home from a childbirth class at a Boston hospital on October 23, 1989. Charles Stuart initially told the police that the Stuarts had been shot by a black male. Bennett, a black male, became the prime suspect. The police obtained information from witnesses who, allegedly, implicated Bennett. It is asserted that this information included a tape-recorded statement of a witness. The police used the information to obtain warrants to search Bennett's residence and the residences of Bennett's friends and relatives. Three witnesses have indicated that the information they provided the police is false, and that they were pressured by the police into giving their information.

A grand jury was convened to investigate the crimes. The grand jury requested that a lineup be held. On December 28, 1989, Bennett appeared in a lineup at which he was supposedly identified by Charles Stuart as the assailant. This procedure was videotaped.

Charles Stuart subsequently was found dead, apparently the result of suicide. Shortly thereafter, the district attorney's office announced that Bennett was no longer a suspect. The grand jury, however, are still actively investigating the case.

We now describe the procedural background of the two appeals. WBZ requested under the public records law, G.L. c. 66, § 10 (1988 ed.), that the district attorney provide it with a "a copy of any and all materials, including but not limited to, affidavits, statements to police, police reports, police notebook entries, and line-up orders, relating to William Bennett being placed in a line-up in connection with the investigation of the shooting of Carol Stuart." The district attorney denied the request. WBZ filed in Superior Court a motion to gain access to the materials. A Superior Court judge allowed access to various search warrants supporting affidavits, and returns. The judge denied access to the videotape of the lineup on the ground of secrecy of grand jury proceedings.

WBZ petitioned a single justice of the Appeals Court, pursuant to G.L. c. 231, § 118, first par. (1988 ed.), for relief from the denial of access to the videotape. That single justice denied the petition. ¹ WBZ thereafter filed in the Supreme Judicial Court for Suffolk County, pursuant to G.L. c. 249, § 5 (1988 ed.), a complaint for relief in the nature of mandamus and a "motion for mandatory injunction," seeking to compel the district attorney to provide the videotape and the tape recording of the witness statement. A single justice of this court denied the injunction as to the videotape, and, as to the tape recording, ordered the case transferred to Superior Court for a determination whether it was exempt from disclosure under G.L. c. 4, § 7, Twenty-sixth (f ) (1988 ed.) ("investigatory materials ... the disclosure of which ... would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest"). ² WBZ appeals from the single justice's denial of the injunction seeking access to the videotape.

On transfer, a judge in the Superior Court accepted and read in camera a memorandum submitted by the district attorney detailing reasons why disclosure of the witness statement would compromise the ongoing grand jury investigation. (The contents of the memorandum were not disclosed to WBZ.) The judge ruled that, for the reasons stated in the district attorney's memorandum, the tape recording ³ was exempt from disclosure "at this time." WBZ petitioned a single justice of the Appeals Court for relief from this order pursuant to G.L. c. 231, § 118, first par. The single justice read in camera the district attorney's memorandum and, for the reasons stated therein, denied relief.

WBZ then filed in the Supreme Judicial Court for Suffolk County a complaint under G.L. c. 211, § 3 (1988 ed.), seeking relief from the denial of access to the tape recording. A single justice of this court read in camera the district attorney's memorandum and, for the reasons stated therein, denied relief. WBZ appeals the denial of relief under G.L. c. 211, § 3.

1. Access to the videotape of the lineup. The Commonwealth points out that there is a threshold procedural problem with WBZ's appeal from the single justice's order concerning access to the videotape. For the reasons spelled out in the margin, the Commonwealth is correct in its contention. ⁴ However, the matter involves a case which has generated considerable public interest and concerns a claim of right of access by the media to material that WBZ argues is being improperly held from the public. The question of WBZ's entitlement to the videotape and the question of its entitlement to the tape-recorded statement are facets of the single claim of right of access. Moreover, the two questions have been consolidated for purposes of this appeal. In these circumstances we believe that the interest of efficient administration of justice calls for the exercise of our power under G.L. c. 211, § 3; to consider the issues raised concerning the ruling of the single justice. See Campana v. Directors of the Mass. Hous. Fin. Agency, 399 Mass. 492, 499 n. 16, 505 N.E.2d 510 (1987).

The single justice denied access to the videotape essentially for the reasons stated in the memorandum of decision of the Superior Court judge who decided WBZ's motion. Those reasons were grounded on the requirement of secrecy of the grand jury and a conclusion that WBZ had not demonstrated a constitutionally based interest compelling enough to override that requirement. We inquire only whether the single justice had abused his discretion or committed a clear error of law. See Luna v. Superior Court, 407 Mass. 747, 749-750, 555 N.E.2d 881 (1990). We find neither an abuse of discretion nor an error of law.

The requirement that grand jury proceedings remain secret is deeply rooted in the common law of the Commonwealth. See Commonwealth v. Harris, 231 Mass. 584, 586, 121 N.E. 409 (1919); Commonwealth v. Mead, 12 Gray 167, 170 (1858); Commonwealth v. Hill, 11 Cush. 137, 140 (1853). "The grand jury as known to the common law always has been regarded as a bulwark of individual liberty and a fundamental protection against despotism and persecution. The rule of secrecy of its hearings and deliberations has come down from early times." Lebowitch, petitioner, 235 Mass. 357, 361, 126 N.E. 831 (1920). See Mass.R.Crim.P. 5(d); 378 Mass. 851 (1979).

Grand jury secrecy is designed to protect the grand jury from extraneous influences that have the potential to distort the investigatory or accusatory functions of the grand jury. See Opinion of the Justices, 373 Mass. 915, 918, 371 N.E.2d 422 (1977). Such extraneous influences include the news media: "Of course, members of the press are not in attendance." Id. at 919, 371 N.E.2d 422. The requirement of grand jury secrecy also is designed to protect individuals from notoriety and disgrace, unless probable cause is found to indict them, Commonwealth v. Pezzano, 387 Mass. 69, 73, 438 N.E.2d 841 (1982); Commonwealth v. Harris, supra; Jones v. Robbins, 8 Gray 329, 344 (1857); to protect witnesses from intimidation and subornation, Opinion of the Justices, supra 373 Mass. at 918-919, 371 N.E.2d 422; see In re Grand Jury Proceedings, 851 F.2d 860, 864 (6th Cir.1988); United States v. Phillips, 843 F.2d 438, 441 (11th Cir.1988); Senate of P.R. v. United States Dep't of Justice, 823 F.2d 574, 588 (D.C.Cir.1987); to encourage full and free disclosure of information concerning the commission of a crime; and to allow the utmost freedom of deliberation to the grand jury. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219 n. 10, 99 S.Ct. 1667, 1673 n. 10, 60 L.Ed.2d 156 (1979).

The lineup in this case was requested by the grand jury. WBZ principally argued before the single justice that the extensive press coverage of the investigation of Bennett has so diminished his privacy interest that disclosure of the lineup videotape will not compromise Bennett's privacy any further. In dealing with this contention the single justice recognized that "[WBZ's] argument does not, of course, face the point of preserving the grand jury's secrecy. The material sought in this action is unlike written affidavits. Cf. Newspapers of New England, Inc. v. Clerk-Magistrate of the Ware Div. of the Dist. Ct., 403 Mass. 628, 531 N.E.2d 1261 (1988). The image of a police lineup, broadcast over television and reprinted in newspapers and elsewhere, would have an incalculably greater effect on a person's privacy interest than dissemination of the written word. Bennett has not been indicted, and the course of the grand jury investigation should not be subject to intrusion in the way sought, at least at this time." We agree with this conclusion. The fact that certain aspects of the investigation of Bennett's alleged involvement with the Stuart case have received wide press coverage does not diminish Bennett's right as an...