NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Ortiz, 466 Mass. 475 (2013)

CONTRIBUTING EDITOR: CONOR GERAGHTY I. Procedural History

The Quincy Division of the District Court Department issued a complaint against the defendant for distribution of a class B substance and school zone charges on July 7, 2010.1 The defendant filed a motion to suppress evidence that was granted in part.2 The jury trial began on September 22, 2011, but resulted in a mistrial because a witness referred to evidence suppressed at the prior hearing.3 At the new hearing on December 15, 2011, the defendant was ultimately convicted on both charges.4 The defendant was sentenced to one year for the distribution charge, and two years on the school zone charge.5 The defendant appealed and the Supreme Judicial Court (SJC) granted direct appellate review.6 II. Facts The Weymouth Police Department was conducting undercover surveillance in the area of Washburn Street in Weymouth on June 29, 2010 when an officer observed a green SUV driven by a Hispanic male, stop in front of 24 Washburn Street.7 The resident, Karen McDonald, exited her home and approached the green SUV.8 McDonald reached her hand into the SUVs passenger side window, and then retracted her hand. 9 According to the witnessing officer, McDonald appeared to be concealing something

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Commonwealth v. Ortiz, 466 Mass. 475, 477 (2013). Id. Id. Id. Id. Id. Commonwealth v. Ortiz, supra at 477-478. Id. at 478. Id.

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in her hand.10 One week later on July 6, 2010, the same Weymouth police officer conducted surveillance in the same area.11 The officer once again observed the same green SUV driven by the same Hispanic male pull up in front of 24 Washburn Street.12 McDonald again exited her home and approached the vehicle;13 and again reached her hand into the passenger side window of the vehicle, and then retracted it.14 Once the SUV drove off, the officer approached McDonald and saw that McDonald had tissue paper in her hand.15 The officer instructed McDonald to hand over the tissue paper.16 Inside the tissue paper the officer found six small bags later identified as cocaine.17 The officer alerted her colleagues to be on the lookout for the green SUV, and that SUV was stopped soon after in the vicinity of 24 Washburn Street.18 The driver of the vehicle was arrested, and during the search incident to arrest, officers found $150 in currency, and an additional dollar bill containing a white, powdery substance.19 The defendant was questioned about the interaction with McDonald in front of 24 Washburn Street, and claimed he had never been to the location before that day, and he only stopped because the woman had flagged him down. 20 He also stated to the officers that he does not sell or do drugs.21 At the beginning of the defendants second trial on December 15, 2011, the judge asked the prosecutor and defense counsel if they agreed to stipulate that the substance found in the six small bags taken from McDonald was cocaine, and each side agreed to do so.22 During trial, both parties referred to the contents of those bags as cocaine, but the jury was not informed of this stipulation by any party during the presentation of the Commonwealths case, and no drug certifications were presented by the Commonwealth during its case-in-chief.23 The defendant did not present

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Id. Id. Id. Commonwealth v. Ortiz, supra at 478. Id. Id. Id. Id. Id. Commonwealth v. Ortiz, supra at 478. Id. at 478-479. Id. at 478. Id. at 479. Id. at 479-480.

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any witnesses.24 During jury instructions, the judge informed the jury that the parties had stipulated that the substance in the bags was cocaine. 25 Defense counsel did not make an objection at that time.26 III. Issue Whether the Commonwealth must introduce any evidence at trial that a stipulation has been agreed upon by both sides, and whether such a stipulation must be in writing and signed by the defendant, or at least in the form of a judicial colloquy.27 IV. Holding and Reasoning The SJC held that where a stipulation as to a material fact has been agreed upon, the Commonwealth does not have the burden to produce evidence of that material fact at trial.28 The fact that the stipulation was presented to the jury after the close of evidence did not prejudice the defendants rights, and was merely harmless error, because the stipulation was only to one material fact (as opposed to all facts which would permit a guilty plea), and the remaining facts were presented by the Commonwealth to the jury.29 The SJC additionally held that, in the future, where the Commonwealth and the defendant stipulate to the existence of an element of a crime alleged in the case, that stipulation must be presented to the jury before the close of evidence.30 Furthermore, the Court considered whether the stipulation must be in writing and signed by the defendant. 31 The defendant argued that such a stipulation should be governed by Rule 11 of the Massachusetts Rules of Criminal Procedure,32 which requires that the defendant sign any stipulation made during the pretrial conference.33 The Court rejected the defendants argument because many stipulations, including the stipulation in this case, are not agreed upon until after the pretrial conference, and thus Rule 11 could not apply.34 The Court requested that the standing advisory committee review this issue and determine if a procedure similar
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Id. at 480. Commonwealth v. Ortiz, supra at 480. Id. Id. at 476. Id. at 481. Id. at 483-484. Id. at 484. Commonwealth v. Ortiz, supra at 485. Mass R. Crim. Pro. 11 Commonwealth v. Ortiz, supra at 485-486. Id. at 486.

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to the procedure governed by Rule 11 would be appropriate in a situation where the stipulation was made after the pretrial conference.35 V. Impact on Law This ruling removes the burden of Massachusetts prosecutors of having to prove the existence of a stipulation regarding a material fact at trial.36 Now, as long as a stipulation has been agreed upon by the parties prior to trial, the prosecutor can proceed with the trial as if that fact has already been proved, even if the jury has not been notified that such a stipulation is agreed upon.37 Additionally, such a stipulation does not need to be signed by the defendant if the stipulation is agreed upon at a point in time after the completion of the pretrial conference.38

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Id. at 486-487. Id. at 480. See id. Id. at 486.