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Commonwealth v. Washington W., 462 Mass. 204 (2012)

Commonwealth v. Washington W., 462 Mass. 204 (2012)

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On August 13, 2008, Washington W., a juvenile, filed a motion seeking
discovery of statistical data concerning the district attorney’s prosecution
of juvenile sexual assault charges. A Juvenile Court judge denied the
motion without prejudice. After the Supreme Judicial Court’s (“SJC”)
decision in Commonwealth v. Bernardo,1 the juvenile filed a renewed
discovery motion that was allowed on March 30, 2009. The Court ordered
the Commonwealth to produce discovery no later than May 4, 2009. After
denial of the Commonwealth’s motion for reconsideration, a new June 4,
2009 production deadline was set. On June 2, the Commonwealth moved
for relief from that order. The judge denied the motion, but extended the
deadline to June 19, 2009. On June 12, the Commonwealth filed a petition
for interlocutory review of the discovery order with the SJC. On June 25,
2010, the SJC affirmed the order.
On August 13, 2008, Washington W., a juvenile, filed a motion seeking
discovery of statistical data concerning the district attorney’s prosecution
of juvenile sexual assault charges. A Juvenile Court judge denied the
motion without prejudice. After the Supreme Judicial Court’s (“SJC”)
decision in Commonwealth v. Bernardo,1 the juvenile filed a renewed
discovery motion that was allowed on March 30, 2009. The Court ordered
the Commonwealth to produce discovery no later than May 4, 2009. After
denial of the Commonwealth’s motion for reconsideration, a new June 4,
2009 production deadline was set. On June 2, the Commonwealth moved
for relief from that order. The judge denied the motion, but extended the
deadline to June 19, 2009. On June 12, the Commonwealth filed a petition
for interlocutory review of the discovery order with the SJC. On June 25,
2010, the SJC affirmed the order.

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Categories:Business/Law
Published by: New England Law Review on Jan 22, 2013
Copyright:Attribution Non-commercial

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N
EW
E
NGLAND
L
AW
R
EVIEW
M
ASSACHUSETTS
C
RIMINAL
D
IGEST
 
21
Commonwealth v. Washington W.,462 Mass. 204 (2012)
C
ONTRIBUTING
E
DITOR
:
 
 J
ULIANA
C
ATANZARITI
 
I. Procedural History
On August 13, 2008, Washington W., a juvenile, filed a motion seekingdiscovery of statistical data concerning the district attorney’s prosecutionof juvenile sexual assault charges. A Juvenile Court judge denied themotion without prejudice. After the Supreme Judicial Court’s (“SJC”)decision in Commonwealth v. Bernardo,
1
the juvenile filed a reneweddiscovery motion that was allowed on March 30, 2009. The Court orderedthe Commonwealth to produce discovery no later than May 4, 2009. Afterdenial of the Commonwealth’s motion for reconsideration, a new June 4,2009 production deadline was set. On June 2, the Commonwealth movedfor relief from that order. The judge denied the motion, but extended thedeadline to June 19, 2009. On June 12, the Commonwealth filed a petitionfor interlocutory review of the discovery order with the SJC. On June 25,2010, the SJC affirmed the order.
2
 In December 2009, the Commonwealth indicted the juvenile as ayouthful offender for two incidents of rape of a child. On March 2, 2010,the juvenile moved to dismiss the indictments. On July 2, 2010, the judgegranted the motion to dismiss without prejudice.
3
 At a status hearing on July 8, 2010, the juvenile filed a renewed motionfor the statistical discovery, which the prosecutor promised to deliver atthe next scheduled court date. At the next court date, August 12, 2010, theCommonwealth failed to produce the discovery and informed that judgethat it no longer considered itself legally obligated to provide it because theindictments had been dismissed. The judge noted that the Commonwealth
1
453 Mass. 158, 169 (2009) (holding that discovery requests pertaining to a defendant’sclaim of selective prosecution may be granted where the defendant has “made a thresholdshowing of relevance” under Mass. R. Crim. P. 14).
2
Commonwealth v. Washington W., 462 Mass. 204, 206 (2012).
3
Id. at 206.
 
22
New Eng. L. Rev. Mass. Crim. Dig.
v. 47 | 21
was still pursuing prosecution of the indictments, and ordered productionof all discovery by August 31, 2010.On October 5, the juvenile had still not received the discovery, andmoved to dismiss the indictments with prejudice. On October 7, theprosecutor informed the judge that he had the discovery with him, but hewould not produce it because he was no longer obligated to. The judgeallowed the juvenile’s motion to dismiss with prejudice.
4
 
II. Facts
The juvenile and the complainant have Asperger’s syndrome. Whenthe juvenile was in the ninth grade and the complainant in the seventh,they became friends and often played at the juvenile’s home. On May 7,2007, the complainant told his parents that he had engaged in varioussexual acts with the juvenile that were initiated by the juvenile. The parentsnotified the police, and Detective Eric Wade interviewed the parents thatday. Three days later, the complainant participated in a Sexual AbuseIntervention Network (SAIN) interview. On August 7, 2007, the juvenilewas charged with two delinquency complaints of rape of a child, and twodelinquency complaints of indecent assault and battery on a child underthe age of fourteen.
5
 
III. Issues Presented
1. Whether the July 2, 2010 dismissal of the indictments was properunder a theory of (a) insufficiency of the evidence; or (b) the impairment ofthe integrity of the grand jury proceeding.2. Whether the judge properly dismissed the indictments withprejudice for failure of the Commonwealth to comply with discoveryorders.
IV. Holdings and Reasoning
1(a). The judge erred in granting the July 2 dismissal on insufficiencygrounds. In order to indict an accused, the grand jury must “hear sufficientevidence to establish the identity of the accused . . . and probable cause toarrest him[.]”
6
Here, the detective’s testimony that the complainant toldhim “that the juvenile would ‘push his pants down and then push him onto the ground’” was enough to support the youthful offender indictment.
7
 1(b). The judge did not err in holding that “sufficient evidence waswithheld from the grand jury to so seriously taint the proceedings as to
4
Id. at 208.
5
Id. at 205.
6
Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982) (internal citation omitted).
7
Commonwealth v. Washington W., supra at 211.
 
2013
Commonwealth v. Washington W.
23
warrant dismissal of the indictments.”
8
“When the prosecutor possesse[d]evidence which would greatly undermine the credibility of evidence likelyto affect the grand jury’s decision to indict, the prosecutor must alert thegrand jury to the existence of such evidence.”
9
 In this case, the prosecutor had a transcript and a video recording ofthe SAIN interview with the complainant, but did not offer it into evidence.During the interview, the complainant made statements that wereinconsistent with the testimony offered by Detective Wade. Contrary toWade’s testimony that the complainant told him that he was pushed orforced to the ground, during the interview, the complainant made no suchstatements. This evidence would have contradicted the detective’sstatements and put into question the reliability of the parents’ statementsthat the complainant told them that the juvenile pushed him to the ground.The infliction of threat or serious bodily harm was a necessary element ofthe offense, and although the prosecutor was not required to providecopies of the SAIN interview, he was required to present the grand jurywith exculpatory information that would undermine that necessaryelement of the offense. The indictments were properly dismissed.
10
 2. The judge did not abuse his discretion when he dismissed theindictments with prejudice on October 7, 2010. A judge may imposesanctions on a party for failure to comply with a discovery order. The SJCaccepts the lower court’s findings of fact absent clear error, and reviews thesanction order for abuse of discretion. The court finds no clear error in the judge’s finding that the Commonwealth deliberately, willfully, andrepetitively failed to provide the statistical discovery. The Commonwealthappeared to be aware of its obligation, as it represented that it wouldproduce the discovery at a later date. However, the prosecutor reneged onhis affirmation, and contended that he no longer had an obligation toproduce the discovery once the indictment had been dismissed. No party ispermitted to disregard a court order based on its own contention that theorder is no longer necessary. This is especially the case where, as here, the judge rejected that contention. Unless the order is vacated, it remains anorder of the court and a party that willfully violates the order is subject tosanctions.
11
The issue was not moot due to the July 2 dismissal because thatdismissal was without prejudice and the Commonwealth was pursuingfurther action.The judge did not abuse her discretion in dismissing the case withprejudice after finding that the Commonwealth deliberately, willfully, andrepeatedly failed to comply with the discovery order. Although dismissal
8
Id.
9
Id. quoting Commonwealth v. McGahee, 393 Mass. 743, 746 (1985).
10
Id. at 212-213.
11
Id. at 215.

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