Opinion
15-P-284
03-28-2016
COMMONWEALTH v. ANTHONY BROWN.
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
Following the disposition of his criminal case in the Superior Court, the defendant moved for an order requiring the Commonwealth to pay him the fair market value of personal property seized by the police that later went missing. A Superior Court judge denied the motion, declining to exercise jurisdiction in light of an available civil remedy. On appeal, the defendant claims that the judge did not have discretion to decline to exercise jurisdiction, and if he did, his failure to act was an abuse of that discretion. We affirm.
Background. The defendant was indicted on five counts of receiving stolen property over $250 in violation of G. L. c. 266, § 60. The Commonwealth sought sentencing enhancement alleging that the defendant was a habitual offender pursuant to G. L. c. 279, § 25. The property alleged to have been stolen by the defendant -- currency, tools, jewelry, and electronics -- was seized pursuant to a search warrant. The defendant moved to suppress that evidence and the judge allowed so much of the motion as related to items not specifically listed in the search warrant. Thereafter, eight of the ten indictments were dismissed on the defendant's motion without objection from the Commonwealth. Ultimately, the defendant pleaded guilty to a single amended charge of receiving stolen property less than $250 and was sentenced to time served.
The judge allowed the defendant's assented to motion for return of property. Some, but not all of the property, was returned to the defendant's wife. Further investigation revealed that some of the property not returned was sold at auction by the Brockton police department approximately sixty days after execution of the search warrant. After a hearing, the motion judge issued a second ruling on the defendant's motion for return of property, stating, "[t]he court, on Dec. 3, 2013, allowed the defendant's motion for return of property. The defendant's motion to order the Commonwealth to pay the defendant the fair market value of destroyed or missing property is denied. Pursuant to Comm[onwealth] v. Sacco, 401 Mass. 204, 208 (1987), the court declines to exercise further jurisdiction over the matter. The defendant has an available remedy in the nature of a civil action." This appeal followed.
Discussion. The defendant argues that the motion judge committed an error of law when he declined to exercise jurisdiction over the defendant's motion for an order that the Commonwealth pay the fair market value of the missing property. He relies on Commonwealth v. Sacco, supra, in which the Supreme Judicial Court held:
"If a defendant moves for the return of property which a judge has already determined in the same proceeding was unlawfully seized, and no third person has any reasonable claim to the property, the judge has the authority to enter any appropriate order concerning the return of the property (or, if it has been lost or destroyed, payment of its fair market value)."According to the defendant, because the motion judge had previously ruled that the property had been unlawfully seized and there were no third party claims, Sacco required the judge also to exercise jurisdiction, hold a hearing, and make a ruling regarding the property's fair market value. We disagree. While it may have been more efficient to conduct a hearing and resolve the matter in the criminal case, we do not interpret Sacco to mandate such action. Rather, the plain language of Sacco gives the judge that authority if he chooses to exercise it. As the court in Sacco acknowledged, other courts have declined to exercise ancillary jurisdiction in lieu of a civil remedy where tangible property rather than currency is involved. See id. at 207. See Mayo v. United States, 425 F. Supp. 119, 123 (E.D. Ill. 1977) (Federal Tort Claims Act provides adequate remedy at law for destruction of seized printing press). We conclude that Sacco stands for the proposition that judges in criminal cases have jurisdiction to address defendants' claims of seized property lost or destroyed if, in the exercise of their discretion, it is appropriate under the facts and circumstances of an individual case.
We next review whether the judge abused his discretion when he declined to exercise jurisdiction over the motion in this case. See Beldotti v. Commonwealth, 41 Mass. App. Ct. 185, 189-190 (1996). Here the judge was faced with a claim for money damages for the fair market value of tangible personal property -- jewelry, tools, and electronics -- not just currency as was the case in Sacco. Here, the parties agreed that an evidentiary hearing would be necessary to determine the fair market value of the property. Further, the judge was advised that the seizing agency had not returned some of the property (watches and cameras), because it appeared that the property belonged to persons other than the defendant. Under these circumstances, where (1) valuation of tangible physical property would require an evidentiary hearing, (2) ownership of some of the items was contested, (3) the agency responsible for the loss, the Brockton police department, was not a party to the action, and (4) there was an available civil remedy, it was not an abuse of discretion for the motion judge to decline to exercise jurisdiction.
Order denying motion for return of property affirmed.
By the Court (Wolohojian, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 28, 2015.