Opinion
15-P-760 15-P-761 15-P-762
01-11-2017
COMMONWEALTH v. TALLULAH T., a juvenile (and six companion cases ).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from Juvenile Court orders granting the juveniles' motions to dismiss. Tallulah T. was charged by delinquency complaint with larceny under $250; assault and battery; and assault and battery by means of a dangerous weapon. The remaining two juveniles were charged with larceny under $250 and assault and battery. The Commonwealth argues that the judge abused his discretion by granting the motions to dismiss. We agree and, accordingly, the orders granting the juveniles' motions to dismiss are reversed.
Standard of review . "In reviewing the [allowance] of a motion based on the Commonwealth's loss [or destruction] of allegedly exculpatory evidence, we do not disturb the judge's decision absent a clear abuse of discretion." Commonwealth v. Kee , 449 Mass. 550, 554 (2007). "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made 'a clear error of judgment' in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives." L.L . v. Commonwealth , 470 Mass. 169, 185 n.27 (2014) (citation omitted).
Discussion . The juveniles have the initial burden to establish a "reasonable possibility, based on concrete evidence rather than a fertile imagination, that access to the lost or destroyed evidence would have produced evidence favorable to [their] cause." Commonwealth v. Heath , 89 Mass. App. Ct. 328, 333 (2016), quoting from Commonwealth v. Williams , 455 Mass. 706, 716-717 (2010). They argue that the shopkeeper's videotape recording of the incident would prove that the shopkeeper was the initial aggressor. The juveniles contend that the recording was vital to their defense. See Heath , supra . It is reasonably possible that the shopkeeper's recording would have produced evidence favorable to the juveniles' causes, and thus they met the initial burden. See Commonwealth v. Neal , 392 Mass. 1, 12 (1984).
Once the defendant meets her initial burden, "a balancing test is employed to determine the appropriateness and extent of remedial action." Commonwealth v. Willie , 400 Mass. 427, 432 (1987). The judge must weigh the "culpability of the Commonwealth, the materiality of the evidence and the potential prejudice to the defendant." Commonwealth v. Olszewski , 401 Mass. 749, 755 (1988), quoting from Willie , supra . "[T]he judge has discretion concerning the manner in which to protect the defendant's rights." Commonwealth v. Henderson , 411 Mass. 309, 310 (1991). However, in the absence of wilful misconduct on the part of the authorities, charges will not be dismissed unless there has been "irremediable harm" preventing the possibility of a fair trial. Commonwealth v. Holman , 27 Mass. App. Ct. 830, 831 (1989).
Here, the motion judge found that the missing recording was material and that "the destruction of the evidence was highly prejudicial to the defendants." The absence of the recording may have prejudiced the defendants, but there is nothing in the record to confirm that the recording was exculpatory or that it existed at the time the request was made. Furthermore, the ability to cross-examine the shopkeeper at trial about why the recording was not preserved, particularly if coupled with a missing evidence instruction from the judge, could remedy any potential prejudice. Compare Heath , 89 Mass. App. Ct. at 338. See Commonwealth . v. Meas , 467 Mass. 434, 449, cert. denied, 135 S. Ct. 150 (2014).
We are also unwilling to conclude that the Commonwealth was culpable for the destruction of the recording. Although "[t]he prosecutor should make every effort to disclose to the defendant exculpatory evidence which is available to the prosecution," Olszewski , 401 Mass. at 753 (quotation omitted), the recording was never in the Commonwealth's possession. The prosecutor agreed to serve the shopkeeper with the preservation order, served them in a timely manner, and through no fault of the Commonwealth, the evidence was apparently not preserved. The prosecutor's assent to serve the shopkeeper does not shift the burden of production of the evidence to the Commonwealth.
"[A]bsent egregious misconduct or at least a serious threat of prejudice, the remedy of dismissal infringes too severely on the public interest in bringing guilty persons to justice." Commonwealth v. Cinelli , 389 Mass. 197, 210, cert. denied, 464 U.S. 860 (1983). There is no evidence of "egregious misconduct" on the part of the Commonwealth, and any potential prejudice stemming from the unpreserved recording could be remedied at trial. Dismissing the charges was not appropriate in these circumstances.
Orders allowing motions to dismiss reversed .
A pseudonym.