Opinion
15-P-732
04-08-2016
COMMONWEALTH v. ROBERT ANTHONY STEVENS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Robert Anthony Stevens, appeals from the denial of his postconviction motion for discovery regarding the location of a sexual assault kit, and the denial of his related motion for an evidentiary hearing. See G. L. c. 278A, § 3. For the reasons set forth below, we affirm.
1. Background. After a jury-waived trial in 1991, the defendant was found guilty on multiple indictments charging kidnapping, aggravated rape, and assault and battery by means of a dangerous weapon. He did not appeal from his convictions. In 1993, the defendant filed a motion for new trial, which was denied by the trial judge and affirmed by this court in a memorandum and order pursuant to our rule 1:28. Commonwealth v. Stevens, 41 Mass. App. Ct. 1110 (1996).
The defendant then attempted to locate the sexual assault kit to conduct a test for deoxyribonucleic acid (DNA). The attempt was unsuccessful. In 2006, the defendant filed a "motion for access to physical evidence" seeking an order requiring the Commonwealth to "conduct a coordinated and documented search . . . [of] the Springfield Police Department, the state crime laboratory, and the Hampden County [Superior Court] Clerk's office." In response to the defendant's motion, a judge (first motion judge) ordered the Commonwealth "to provide a chronology of who had possession of the sexual assault kit from the time it [first] came into the possession of law enforcement up to the present. If there are gaps in the time they should be so noted. The [Commonwealth] is to actively work [with] the law enforcement agencies and the crime lab in determining the chronology" (emphasis original).
The sexual assault kit was not admitted at trial. A tree branch and several items of clothing were tested for the presence of semen in 2000, without conclusive results. These items were located with the session clerk of the Hampden County Superior Court and were returned to the session clerk. Commonwealth v. Stevens, 70 Mass. App. Ct. 1116 (2007).
The Commonwealth complied with the first motion judge's order by submitting: (1) a detailed chronology of the known locations of the sexual assault kit from July 29, 1990, until May 21, 1991, after which time there is no record of its location; (2) a detailed chronology from March 20, 2006, to December 11, 2006, which specified the search efforts voluntarily undertaken by the Commonwealth to locate the sexual assault kit; and (3) supporting evidence describing the whereabouts of the sexual assault kit, and affidavits from various individuals who had searched for it after it had gone missing. Martha Murphy Kane, the deputy director of operations for the Hampden County district attorney's office, attested that during her twenty years at the office she was responsible for "the organization" of the office's evidence safe, and that in the summer of 2006 she conducted "an inventory of items from within the [district attorney's evidence] safe to determine which items [from finished cases] could be returned to the originating [arresting] police department for storage." Other affidavits attested to searches for the defendant's and the codefendant's case files by the Hampden County district attorney's office, Springfield police department, Hamden County Superior Court, and State crime laboratory. The missing sexual assault kit was not located.
After reviewing the Commonwealth's submissions, the first motion judge ruled that no further discovery was warranted because the Commonwealth's "exhaustive search did not result in the discovery of a sexual assault kit." In a memorandum and order pursuant to our rule 1:28, this court affirmed. Commonwealth v. Stevens, 70 Mass. App. Ct. 1116 (2007).
In 2014, after the passage G. L. c. 278A, the defendant filed the motions at issue in this appeal. The defendant requested that the court order the Commonwealth to provide an inventory of the evidence removed from the Hampden County district attorney's office evidence safe in 2006, and either conduct or allow a search of all case files on the inventory, beginning with the cases involving sexual assault allegations or charges. In support of his G. L. c. 278A motion, the defendant submitted substantially the same materials that were considered by the first motion judge in 2006. The Commonwealth filed a response that included a new affidavit from Kane, who stated that in the years in which she was employed by the Hampden County district attorney's office she conducted an annual inventory of the evidence safe and had not located the sexual assault kit. Material to this appeal, these inventories were conducted each summer from the time of trial (1991) until Kane left the Hampden County district attorney's office to take another job in 2011.
It is unclear whether the defendant requested an order requiring the Commonwealth to conduct the search or requiring the Commonwealth to allow the defendant to conduct the search.
Another judge (second motion judge) concluded "that the defendant has failed to establish the location and chain of custody of the sexual assault kit or that further discovery regarding the sexual assault kit will yield results." He also concluded that "[a]n issue once decided, should not be reopened unless there is new evidence, there has been a change in the controlling law or the decision was clearly erroneous. . . . Although G. L. c. 278A was enacted in 2012, well after [the 2006] ruling [by the first motion judge], it did not change the law of post conviction discovery in a situation where the item to be discovered cannot be located." The second motion judge then denied as moot the defendant's motion for an evidentiary hearing.
2. Discussion. The Commonwealth does not dispute that the defendant is entitled to conduct a DNA test if the sexual assault kit can be found. The only issue properly presented on appeal is whether the defendant was entitled to additional discovery, that is the 2006 inventory, in order to locate the sexual assault kit, assuming that it was misfiled rather than discarded.
In our previous memorandum and order pursuant to rule 1:28 we concluded that the record disclosed no wrongdoing and no evidence of any request, knowledge, or policy that would have required the retention of the sexual assault kit after the direct appeal was waived and denial of the first motion for new trial was affirmed on appeal. Commonwealth v. Stevens, 70 Mass. App. Ct 1116 (2007), citing Commonwealth v Jewett, 17 Mass. App. Ct. 354, 360 (1984). The same is true here.
We review the denial of a defendant's G. L. c. 278A request for postconviction discovery for an abuse of discretion. See G. L. c. 278A, § 7(c), inserted by St. 2012, c. 38 ("The court on motion of any party . . . may authorize such discovery as provided for under [Mass.R.Crim.P.] 30(c)(4)[, as appearing in 435 Mass. 1501 (2001)]"). Cf. Commonwealth v. Ware, 471 Mass. 85, 94-96 (2015) (postconviction discovery motion under Mass.R.Crim.P. 30[c][4] is reviewed for abuse of discretion). "[I]f a judge finds 'good cause' for a moving party's 'inability to obtain items or information required under' [G. L. c. 278A,] §§ 3(b) and 7(b), then the judge can 'order discovery to assist the moving party in identifying the location and condition of evidence or biological material that was obtained in relation to the underlying case, regardless of whether it was introduced at trial or would be admissible.'" Commonwealth v. Clark, 472 Mass. 120, 138 (2015), quoting from G. L. c. 278A, § 7(c).
The defendant contends that the second motion judge erred as a matter of law because he incorrectly treated the 2006 ruling as dispositive as law of the case, and held the defendant to a higher standard than that set by G. L. c. 278A. See Commonwealth v. Wade, 467 Mass. 496, 505-506 (2014) (rule 30 standard, that "a defendant is not entitled to obtain scientific testing of evidence unless he makes a prima facie showing that the test results would warrant a new trial," does not apply to G. L. c. 278A [quotation omitted]). Passing on whether the second motion judge's ruling held the defendant to a higher standard, the judge also concluded that the defendant had not shown good cause to require any further discovery regarding the 2006 search, where, as here, the issue was the location of missing evidence.
The defendant's argument appears inapposite, as the second motion judge's reference to the law of the case was made with respect to the completeness of the efforts to locate missing evidence, not the defendant's rights under G. L. c. 278A. If the judge had limited his review solely to the issue of good cause, the deficiency in the record remains for the reasons stated infra. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997) (appellate court may affirm on any grounds evident from record).
The second motion judge did not abuse his discretion in declining to order further discovery concerning an inventory undertaken fifteen years after trial. See generally L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). On the record before us, the defendant has not shown good cause to conclude that the sexual assault kit was in the safe and overlooked or misfiled in 2006, especially where, as here, Kane's affidavits stated that the inventories were conducted once each summer and files from "finished cases" were returned to their respective originating police departments after each inventory. The defendant's trial was conducted in 1991, and his case was closed in 1992 when he did not file a direct appeal. Moreover, Kane stated in her 2014 affidavit that she did not find a sexual assault kit "in any of the yearly inventories or at any other time." For the same reasons, the second motion judge did not abuse his discretion in denying the request for an evidentiary hearing. See Commonwealth v. Shuman, 445 Mass. 268, 278 (2005).
The defendant points to the prosecutor's summary of Kane's 2006 affidavit and contends that a particular statement -- "[Kane] has no memory of whether or not she returned the rape kit in question" -- is in conflict with Kane's 2014 affidavit, which stated that she never located the kit. In her 2006 affidavit, however, Kane did not attest to her lack of memory of the searches. There is no conflict.
The defendant argues in his reply brief in this court that the second motion judge should have allowed discovery related to the inventories conducted between 1991 and 2006, in particular 1991 and 1992, the year of and immediately following the defendant's trial, so that those lists (if such lists exist) could be used to check other case files located at the office of the district attorney or the relevant police department in which the sexual assault kit may have been misfiled. This argument is materially different from the argument made to the second motion judge. The defendant's motion for discovery under G. L. c. 278A focused on the 2006 inventory and search, as did his memorandum, reply memorandum, and motion for evidentiary hearing. The second motion judge ruled on matters pertaining to the 2006 inventory and search. Although there was passing reference to the other inventories at the hearing before the second motion judge, discovery of the 1991 and 1992 inventories was not placed squarely before him. Cf. Commonwealth v. Ware, 471 Mass. at 94 (judge did not abuse his discretion in denying motion for postconviction discovery as "presented"). If the defendant seeks discovery related to the earlier inventories, the appropriate remedy is to file a new G. L. c. 278A motion in the trial court. See Commonwealth v. Clark, 472 Mass. at 138 n.19. Cf. Commonwealth v. Ware, supra.
"This argument is not timely [on appeal], as it cannot be raised for the first time in the reply brief." Commonwealth v. Keevan, 400 Mass. 557, 562 n.4 (1987). See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 919 (1975), and 16(c), as amended, 365 Mass. 860 (1974). Accordingly, we do not consider it on the merits.
In his motion for discovery, the defendant requested "[a]n inventory of the items that Deputy Director Kane removed from the Hampden County District Attorney's office safe in connection with her 2006 inventory." In a subsequent reply memorandum, the defendant asked, "at a minimum, to obtain a copy of the 2006 inventory" and requested the "Court to grant the relief requested in his Motion for Post-Conviction Access to Forensic and Scientific Analysis Pursuant to Chapter 278A."
Order denying motion for discovery affirmed.
Order denying motion for evidentiary hearing affirmed.
By the Court (Meade, Sullivan & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 8, 2016.