Wing v. Comm'r of Prob.

• Citation: 473 Mass. 368,43 N.E.3d 286
• Decision Date: 28 December 2015
• Docket Number: SJC–11842.
• Parties: Elmer WING v. COMMISSIONER OF PROBATION.
• Court: United States State Supreme Judicial Court of Massachusetts

473 Mass. 368

43 N.E.3d 286

Elmer WING

v.COMMISSIONER OF PROBATION.

SJC–11842.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 8, 2015.

Decided Dec. 28, 2015.

Adam M. Bond, Middleborough, for the plaintiff.

Sarah M. Joss, Special Assistant Attorney General, for the defendant.

Mary Lee, Assistant District Attorney, for the Commonwealth.

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

Opinion

HINES

, J.

In this appeal we decide whether a criminal defendant's right to disclosure of a prospective witness's criminal record under the mandatory discovery provisions of G.L. c. 218, § 26A

,

and Mass. R.Crim. P. 14(a)(1)(D)

, as amended, 444 Mass. 1501 (2005), extends to a criminal record sealed under G.L. c. 276, § 100A. Elmer Wing, who stands charged with malicious destruction of property over $250 on a complaint issued in the Wareham Division of the District Court Department, sought an order compelling production of the complaining witness's sealed criminal record. A judge denied the motion. The matter is now before us on a single justice's reservation and report of Wing's petition for relief under G.L. c. 211, § 3, to the full court.

Wing claims that the mandatory disclosure required by G.L. c. 218, § 26A

, and rule 14(a)(1)(D) is not subject to an exception for sealed criminal records. He also claims that disclosure is necessary to effect his constitutional right to confrontation of the complaining witness. Reading the potentially conflicting statutes harmoniously, as we are obliged to do, we conclude that G.L. c. 218, § 26A, and rule 14(a)(1)(D) do not require disclosure of criminal records sealed pursuant to G.L. c. 276, § 100A.¹ We conclude also that Wing has failed to establish a constitutional right to disclosure for confrontation purposes where he seeks only impeachment based on the witness's prior criminal conviction.

Background. We summarize only those aspects of the procedural history pertinent to the resolution of the issues presented in this appeal. Although the facts underlying the charge of malicious destruction of property over $250 are not specified in the record, the Commonwealth has not disputed Wing's assertion that the charge is based on the allegation that Wing caused a security gate at his property to strike and damage the complaining witness's vehicle.² During pretrial discovery, Wing filed a request for mandatory discovery of the complaining witness's criminal record under G.L. c. 218, § 26A

, and rule 14(a)(1)(D). The probation department produced the unsealed entries in the witness's criminal record but withheld the entries sealed pursuant to G.L. c. 276, § 100A. Wing filed a motion to compel production of the sealed criminal record. The judge denied the motion, and this petition for review pursuant to G.L. c. 211, § 3, followed.

Discussion. 1. Right to review under G.L. c. 211, § 3

. The probation department contends that Wing is not entitled to the

review he seeks under G.L. c. 211, § 3

, arguing that he has failed to establish a “substantial claim” of “irremediable” error sufficient to justify the extraordinary relief available under the statute. See Commonwealth v. Jordan, 464 Mass. 1004, 1004, 980 N.E.2d 454 (2012). We bypass the issue, however, because, when a single justice reserves decision and reports a case to the full court, “we grant full appellate review of the issues reported” (quotation omitted). Commonwealth v. Goodwin, 458 Mass. 11, 15, 933 N.E.2d 925 (2010).

2. Discovery of sealed records. The issue before us arises in the context of a potential conflict between a defendant's statutory right to mandatory discovery of a witness's criminal record under G.L. c. 218, § 26A

, and rule 14(a)(1)(D), and the privacy protections accorded to former criminal defendants by the sealing of criminal records under G.L. c. 276, § 100A. See Commonwealth v. Pon, 469 Mass. 296, 300, 14 N.E.3d 182 (2014). We begin the analysis by providing an overview of the relevant statutes and rule.

a. Mandatory discovery of criminal records. Wing's claim derives from G.L. c. 218, § 26A

, and rule 14(a)(1)(D), both of which unequivocally provide for mandatory discovery of a witness's criminal record. General Laws c. 218, § 26A, second par., applicable to criminal trials in the Boston Municipal Court and District Court Departments, provides that “[u]pon motion of the defendant the judge shall order the production by the commonwealth of the names and addresses of the prospective witnesses and the production by the probation department of the record of prior convictions of any such witness” (emphasis supplied). Similarly, rule 14(a)(1)(D) of the Massachusetts Rules of Criminal Procedure requires that “[a]t arraignment the court shall order the Probation Department to deliver to the parties the record of prior complaints, indictments and dispositions of all defendants and of all witnesses” (emphasis supplied). Thus, broadly speaking, a court has no discretion to deny a defendant access to a witness's criminal record. Both G.L. c. 218, § 26A, and rule 14 are silent, however, as to their application to sealed criminal records.

The provision for mandatory discovery of a witness's criminal record was part of a statutory reorganization of the Massachusetts trial court system. G.L. c. 218, § 26A

, as appearing in St. 1992, c. 379, § 139.³ Prior to 1986, pretrial discovery generally, and access to a witness's criminal record in particular, were left to the court's discretion with predictably different results. See, e.g., Commonwealth v. Adams, 374 Mass. 722, 732, 375 N.E.2d 681 (1978)

(implicitly recognizing right of access but requiring showing of prejudice to establish error in denial of access to criminal record); Commonwealth v. Colella, 2 Mass.App.Ct. 706, 708–709, 319 N.E.2d 923 (1974) (no error in denying access to witness's criminal record as prosecution not required to collect such records for defendants). The legislative actions in 1986 and 1992 imposed two fundamental changes that provide useful context for our consideration whether mandatory disclosure of criminal records applies to sealed criminal records. First, the requirement in G.L. c. 218, § 26A, second par., that the judge

“shall issue an order of discovery ... requiring that the defendant be permitted to discover, inspect and copy any material and relevant evidence, documents, statements of persons, or reports of physical or mental examinations of any person or of scientific tests or experiments, within the possession, custody, or control of the prosecutor or persons under his direction and control,”

recognized a defendant's presumptive right to relevant routine discovery in criminal cases.⁴ Second, the remaining language requires that “[u]pon motion of the defendant the judge shall order ... the production by the probation department of the record of prior convictions of any such witness.” G.L. c. 218, § 26A

, second par. Against the backdrop of a discovery process entirely within the judge's discretion, the 1986 and 1992 acts, St. 1992, c. 379, § 139, and St. 1986, c. 537, § 8, reflect a legislative intent to streamline the discovery process by imposing a measure of predictability and efficiency in the treatment of routine discovery requests, including access to criminal records. The presumptive right to routine discovery accomplished this purpose by relieving a defendant of the obligation to affirmatively establish a need for and right to such information, and limited judicial discretion in discovery orders governed by the statute. See Commonwealth v. Taylor, 469 Mass. 516, 521–522, 14 N.E.3d 955 (2014) ( rule 14 facilitates automatic production by eliminating defendants' need to request items of mandatory discovery). Mandatory discovery of criminal records likewise contributes to a streamlined discovery process by removing a barrier to the exercise of the right of impeachment as provided in G.L. c. 233, § 21.⁵

Amendments to rule 14

in 2004, designed to promote efficiency in the disposition of criminal cases and to “improve both the administration and delivery of justice,” reinforced the more liberal approach to discovery as set forth in G.L. c. 218, § 26A. See Report of the Supreme Judicial Court Standing Advisory Committee on the Rules of Criminal Procedure, at 73 (May 9, 2003). Rule 14 eliminated the need for a motion “consistent with criminal procedure,” G.L. c. 218, § 26A, second par., and required automatic disclosure of the designated information. See Reporters' Notes to Rule 14 (2004), Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1507 (LexisNexis 2015–2016).

b. The sealing statute, G.L. c. 276, § 100A

. In contrast, G.L. c. 276, § 100A, prohibits, except in circumstances not relevant here, the disclosure of a “sealed” criminal record. The statute provides in relevant part:

“Such sealed records shall not operate to disqualify a person in any examination, appointment or application for public service in the service of the commonwealth or of any political subdivision thereof; nor shall such sealed records be admissible in evidence or used in any way in any court proceedings or hearings before any boards or commissions, except in imposing sentence in subsequent criminal proceedings ....” (emphasis supplied).

G.L. c. 276, § 100A

, fourth par. It mandates that “[t]he commissioner [of probation], in response to inquiries by authorized persons other than any law enforcement agency, any court, or any appointing authority, shall in the case of a sealed record ... report that no record exists ” (emphasis added). G.L. c. 276, § 100A, sixth par.

The impetus for the enactment of G.L. c. 276, § 100A

, was the Commonwealth's “compelling interest in providing privacy protections for former criminal defendants” by prohibiting access to sealed criminal records. See Pon, 469 Mass. at 300, 14 N.E.3d 182. The privacy protections extended to former criminal defendants serves the broader purpose of facilitating their reintegration...