Opinion
14-P-771
05-11-2015
COMMONWEALTH v. BERNARD MEDERO (and a companion case).
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
This is an appeal by the Commonwealth from orders of a Boston Municipal Court judge dismissing, without prejudice, two criminal complaints filed against the codefendants.
Medero was charged under a criminal complaint with possessing cocaine, possessing Percocet with intent to distribute, and two counts of possessing a controlled substance in a school zone. A related criminal complaint charged Cepeda with possessing cocaine, possessing a controlled substance in a school zone, carrying a firearm without a license, receiving a firearm with a defaced serial number, possessing ammunition without an FID card, and carrying a loaded firearm without a license.
Given the abuse of discretion standard set forth in Commonwealth v. Anderson, 402 Mass. 576, 579 (1988); Commonwealth v. Ira I., 439 Mass. 805, 809 (2003); and Commonwealth v. Joseph, 27 Mass. App. Ct. 516, 519 (1989), we are constrained to affirm the dismissals. We do so because it must be acknowledged that there were deficiencies in the Commonwealth's automatic discovery production under Mass.R.Crim.P 14(a)(1)(A)(vii)-(viii), as amended, 444 Mass. 1501 (2005), and production related to Cepeda's discovery motions that were allowed by a different judge. As further discussed below, Medero did not file discovery motions or join in those of Cepeda.
We also note that the Commonwealth has not demonstrated such prejudice as would require reversal under the aforecited case law. Cf. Anderson, 402 Mass. at 579 (affirming dismissal of complaints without prejudice where "[t]he Commonwealth . . . demonstrated no undue prejudice from the judge's decision to require instead that it seek fresh complaints and begin the process of prosecuting the defendant anew").
We note, however, that while we are constrained to affirm the dismissals without prejudice, the summary manner in which the judge acted was not warranted given the procedural flaws in the defense filings.
First, no prehearing motions to dismiss had been filed by the defendants. It was only as the colloquy went on during the suppression hearing, and only in connection with the forcefully voiced criticisms by the judge of the prosecution, that both defense counsel orally moved to dismiss the complaints for discovery issues. Ultimately, the judge stated he was dismissing the complaint against Cepeda for "the Commonwealth's failure to provide the defense counsel with court-ordered discovery ordered back on June 1, of 2012." The judge stated the charges against Medero would also be dismissed because the Commonwealth was "not being ready on the motion to suppress," and had not complied with the June 1, 2012, discovery orders, but, as noted, the order on discovery motions did not apply to Medero, who had not filed any discovery motions and did not join in the Cepeda motions.
The record in this case is confused concerning whether other photographs were, in fact, "owed" by the Commonwealth in discovery. Specifically, it is not clear from the record what number of photographs may have been shown to the confidential informant (CI). The defendant Cepeda -- who was the target of the CI-related investigation and resulting search warrant -- filed a motion (which was allowed by another judge) for the production of "Identification Procedure of Police to have the Confidential Informant identify the Defendant, Juan Cepeda, including any all photographs used in a photo array." Even before the filing and allowance of this Cepeda discovery motion, if such photographs exist, it would appear that such photographs should have been turned over in automatic discovery under Mass.R.Crim.P 14(a)(1)(A)(vii), (viii), as amended, 444 Mass. 1501 (2005). On appeal, Cepeda contends that the photo array consisted of multiple photographs. The Commonwealth, however, suggests that by the time of the suppression hearing, the Commonwealth had already produced a single photograph, and further suggests that this may be the only photograph which was displayed to the CI -- again the record is unclear. Furthermore, the Commonwealth in its brief represents that "[a]s the record reflects, the Commonwealth turned over . . . the photograph from the photo array," and did so before the suppression hearing. Given this affirmance of the dismissals without prejudice, we need not try to resolve this confusion. However, we emphasize that the Commonwealth should forthwith produce photographs, if any, that were displayed to the CI and fall within the photographs requested in the Cepeda discovery motion or that would be subject to production under Mass.R.Crim.P. 14(a) (1)(A).
Second, in entering the dismissals, and in harsh criticism of the Commonwealth, the judge repeatedly emphasized that the cases were "two years old." But the judge appears not to have considered that, of the 763 days the cases were open, from the filing of the complaints to the date of the dismissals, 255 days of continuances were solely attributable to the defendants, and other periods would be accounted for by regular timelines for cases under applicable rules of criminal practice and motion practice.
Third, the judge ignored that both of the defendants' pleadings were fundamentally flawed so that a continuance of the motion to suppress hearing -- including the one-week continuance sought by the Commonwealth -- was a readily available, less intrusive or disruptive response to the circumstances presented. Specifically, with respect to serious flaws in the suppression pleadings, the suppression affidavit of Medero is not signed by him and in the caption erroneously states that it is the motion not of Medero, but of one "Joseph Limone." The Cepeda suppression motion had no supporting affidavit whatsoever, nor was there any memorandum of law which might offer some insight as to the grounds for suppression. Thus, neither of the defendants' suppression motions complied with Mass.R.Crim.P. 13(a)(2), as appearing in 442 Mass. 1516 (2004). These procedural omissions suggest that the limited one-week continuance sought by the Commonwealth would have been a more appropriate response.
Fourth, the prosecutor represented at the suppression hearing that she had the CI guidelines requested by Cepeda in the court room, but the judge would not allow the prosecutor to turn the guidelines over during the colloquy.
Fifth, if the judge decided, as he did, not to consider the prosecutor's one-week continuance request, the judge in an appropriate act of discretion should not have summarily bypassed the prosecutor's alternate position that the Commonwealth was ready to proceed on the motion to suppress, with the police officers who would testify being present in the courtroom.
Judicial discretion to dismiss without prejudice is not limitless. These dismissals come very close to the bounds of an exercise of inappropriate discretion. As the Supreme Judicial Court observed in reversing a sanction imposed by this same judge in Commonwealth v. Gonzalez, 437 Mass. 276, 281 (2002), cert. denied, 538 U.S. 962 (2003), "[j]udicial action to circumvent a rule is inappropriate." In this case, the sanction of dismissal of the criminal complaints (even without prejudice to refile the complaints) was extreme, and the judge did not address important matters that militated against dismissal. Given the fundamental omissions in the defendants' suppression filings, discretion would have been more appropriately exercised to consider allowing a one-week continuance within which (a) the prosecution could produce any pieces of discovery which were the subject of the Cepeda discovery motions which had been allowed, i.e., the CI guidelines and any photographs that had not been produced by the Commonwealth (see note 3 and accompanying text); and (b) the Medero suppression affidavit could have been signed under the pains and penalties of perjury and Cepeda could have similarly filed and signed under oath a suppression affidavit -- as required by Mass.R.Crim.P. 13(a)(2).
In sum, although we have misgivings about the manner and basis of the judge's dismissals of these two criminal complaints, we follow the controlling cases of Anderson, Joseph, and Ira I., supra, and affirm principally because the Commonwealth has not demonstrated sufficient prejudice arising out of the dismissal of the complaints without prejudice.
So ordered.
By the Court (Rapoza, C.J., Berry & Green, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 11, 2015.