Opinion
No. 2007-0079.
May 23, 2008.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION TO DISMISS
On August 5, 2006, Rafael Gomez was shot and killed on Short Street in Lawrence, Massachusetts. Acting on information received shortly after the shooting, police investigators focused on David Polanco, who was identified as the driver of the car seen immediately before the shooting. Polanco told the police Alexis Chavez, the passenger in his car, was the one who shot Gomez. After lengthy proceedings, a grand jury indicted Chavez for one count of murder and two counts of possession of a firearm without a license. Chavez filed a motion to dismiss the indictments against him on December 13, 2007. As grounds for his motion, Chavez argued: 1) the Commonwealth failed to present exculpatory evidence to the grand jury (a so-called O'Dell motion); and, 2) prosecutorial misconduct for failure to timely disclose evidence. This court, Kern, J., held evidentiary hearings on February 29, 2008 and April 17, 2008, hearing from five witnesses, and taking thirty exhibits into evidence. By order dated May 23, 2008, (May 23 Order) this court denied the O'Dell motion. Now before this court is Chavez's motion to dismiss the indictments for prosecutorial misconduct. For the following reasons, Chavez's motion is DENIED .
A grand jury indicted Polanco on January 19, 2007, for one count of murder and two counts of possession of a firearm without a license.
Commonwealth v. O'Dell, 392 Mass. 445 (1984).
BACKGROUND
Chavez was indicted on January 19, 2007. Chavez requested discovery beginning on January 28, 2007. Chavez made two more requests for discovery before the prosecutor said the Commonwealth was going to deny his requests under the Gang Statute on March 1, 2007. Chavez again requested discovery on March 9, 2007. On March 12, 2007, the Commonwealth filed a motion to limit the disclosure of names of certain witnesses to Chavez. On the same day, Chavez filed a motion to compel discovery and an opposition to the Commonwealth's motion. On May 9, 2007, the Commonwealth withdrew its motion and presented Chavez with some discovery.
Chavez went through the evidence given to him by the Commonwealth, and, believing there to be more, on June 15, 2007, asked the prosecutor whether more discovery would be forthcoming. The same day, Chavez filed several motions seeking various pieces of evidence. On September 6, 2007, the Commonwealth presented Chavez with additional discovery, including witness statements and photos, some of which dated back to the day of the crime. The prosecutor told Chavez the discovery had only recently been found in one of the police investigator's files.
On October 2, 2007, the Commonwealth provided Chavez with additional items, including photo arrays, dated August 11, 2006, containing Chavez's picture. The witnesses to whom the arrays were shown were unable to identify Chavez from these photos. (May 23 Order, p. 7). There was also a statement by an eyewitness made approximately three hours after the shooting. (Id. at 6-7). The Commonwealth told Chavez this discovery, located on two compact disks, had been stowed in a computer bag and had recently been found.
On November 6, 2007, the Commonwealth provided Chavez with a police interview of Miguel Velasquez, made August 13, 2006. Two weeks before the Commonwealth provided the audiotape of this interview, Velasquez died. During the interview, Velasquez gave the state troopers the name of another individual he had been told was in the car driven by Polanco on the morning of the shooting. (Id. at 4).
The Commonwealth provided Chavez with still additional items on January 24, 2008, including statements, medical examiner notes, incident reports and case jackets. Some of this discovery dated back to within days of the shooting. The Commonwealth also presented a copy of the fingerprint analysis to Chavez on the second day of the evidentiary hearing.
RULINGS OF LAW
I. Standard of Review
Where a prosecutor fails to disclose evidence the defendant is entitled to receive, a judge may impose appropriate sanctions, which may include dismissal of the criminal charge. Commonwealth v.Hernandez, 421 Mass. 272, 276-277 (1995); Commonwealth v.Cronk, 396 Mass. 194, 198-199 (1985). "Dismissal with prejudice is appropriate in cases of egregious prosecutorial misconduct or on a showing of prejudice (or a substantial threat thereof), or `irremediable harm' to the defendant's opportunity to obtain a fair trial.'"Hernandez, 421 Mass. at 277, citing Commonwealth v. Jacobsen, 419 Mass. 269, 276 (1995). In determining whether dismissal is warranted, the judge must consider the materiality of the evidence not disclosed, the exculpatory nature of the evidence and the extent to which the delay prejudiced the defendant. Cronk, 396 Mass. at 200;Commonwealth v. Lam Hue To, 391 Mass. 301, 308 (1984). A court considering the consequences of a late disclosure should determine "whether, given a timely disclosure, the defense would have been able to prepare and present its case in such a manner as to create a reasonable doubt that would not otherwise have existed." Cronk, 396 Mass. at 200, quoting Commonwealth v. Baldwin, 385 Mass. 165, 175 (1982). Where the conduct is not egregious, the burden to show prejudice lays with the defendant. Commowealth v. Lewin, 405 Mass. 566, 584 (1989);Commonwealth v. Fossa, 40 Mass. App. Ct. 563, 568 (1996).
II. Egregious Nature of Conduct
Here, there is no question there was a significant delay in the disclosure of certain pieces of evidence. This court finds the failure to provide Chavez with certain discovery rests with the investigating officers, whose conduct in turn is attributed to the prosecution.Commonwealth v. Olszewski, 401 Mass. 749, 753 (1988) ("we defined prosecutorial misconduct to include not only lack of disclosure by the prosecutor but also the `inept' and `bungling' performance of the police, which is attributed to the [prosecutor]"). State Police Officer Anthony Shena testified it was not his practice to turn over all his hand-written notes to the prosecutor, (Shena examination, February 29, 2008, p. 34), and that he did not have an accurate record of which notes had been destroyed. (Shena examination, April 17, 2008, p. 8). Indeed, Officer Shena testified he did not type up the interview of one of the eyewitnesses for almost one year. (Id. at 29). While Shena testified he was aware all his evidence had not been turned over to Chavez, he stressed it was not due to an effort to hinder Chavez's defense. (Id. at 15-17).
Lieutenant Norman Zuk of the Massachusetts State Police echoed these statements. He admitted evidence had been turned over late to the prosecutor because of police "inadvertence." (Zuk examination, April 17, 2008, p. 84, 87, 115-117). He also said any late disclosure was not done with an eye to hamper Chavez's defense. (Id. at 84-85, 87, 89). Lt. Zuk further testified the Gomez homicide was not the only investigation the state police was working on at the time. (Id. at 93). He said there were multiple meetings between the police and the prosecutor to make sure the police were providing the prosecution with the most up-to-date information they had. (Id. at 115-118). With respect to the Velasquez auodiotaped interview, Lt. Zuk testified they found Velasquez not to be credible, but they turned over the audiotape of his interview, albeit very late, out of an abundance of caution. (Id. at 81).
The police delay and inadvertence here in turning over evidence to the prosecutor was sloppy at best. Law enforcement investigation of criminal matters and the prosecution of those alleged to have committed those crimes are not mutually exclusive practices; the two must work together as a cohesive unit to achieve a common goal. That the police may be working on other cases is no excuse to neglect their duties to turn over important evidence to the prosecutor so the Commonwealth may provide prompt and accurate discovery in an ongoing case.
That being said, this court finds both Officer Shena and Lt. Zuk credible and their failure to turn evidence over to the prosecutor was not done intentionally or in bad faith. This court also finds when it was brought to their attention, both the state police and the prosecution worked together to make sure they had the same evidence, and as soon as the prosecutor had any new evidence, it was turned over to Chavez. This court finds the conduct of the prosecution team, although shoddy, was not egregious or intentional.
III. Prejudice to Chavez
Various pieces of discovery turned over to Chavez were indeed material and potentially exculpatory, including the negative photo arrays, some of the statements made by witnesses after the shooting and Miguel Velasquez's statement to the police. (May 23 Order, pp. 4-7). While the late disclosure of evidence was certainly avoidable, and should not have happened, the delays were not so prejudicial that the drastic remedy of dismissal is warranted. This is not a case where evidence was turned over on the eve of trial. Rather, the photo arrays and statements made by eyewitnesses, along with other late-disclosed discovery, were turned over well in advance of trial. Chavez is thus afforded sufficient time to review the evidence given to him and to prepare his defense. SeeCommonwealth v. Stote, 433 Mass. 19, 22 (2002) (report given one year after generated and five days before trial was not sufficient to warrant dismissal where defendant did not show prejudice to ability to obtain fair trial).
Velasquez told police he heard Juan Villaman was in Polanco's car at the time of the shooting. (May 23 Order, p. 4). He also said an individual named Jason Cruz tried to sell the murder weapon to him. (Id.). Based on inconsistencies between Velasquez's story and that of the eyewitnesses; for example, Velasquez said he had been told Gomez had been shot in front of his house when in fact Gomez had been shot in the street a distance from his house where he was headed at the time and various other inconsistencies, the police found Velasquez not credible. (Id. at 5-7).
Furthermore, Chavez's specific arguments regarding the prejudicial effect of the untimely disclosure fall short of warranting dismissal. Chavez argues, because of the Commonwealth's failure to disclose evidence in a timely fashion, defense "investigatory difficulties [have become] impossibilities." (Chavez Motion to Dismiss, p. 20.) Chavez contends he lost the ability to interview key witnesses, including Richard Gonzales, Carlos Rivera, Mindy Thai and Yasiira Nunez. Chavez contends these witnesses have banded together to form a conspiracy to inculpate Chavez. From the beginning, Chavez argues, his defense investigation was misguided; had the government disclosed to him the exculpatory evidence, his investigation would have been focused differently and he would have interviewed these individuals. Now that they have all been charged with perjury and have retained counsel, he continues, his opportunity to interview them to unlock the conspiracy is lost.
A grand jury indicted these individuals on January 19, 2007, the same day that Chavez was indicted, and all had counsel before Chavez made his first request for discovery on January 28, 2007. (Id. at 7). Had he been provided with discovery after his first request, the individuals would have already had counsel, and thus, any attempt to interview or question them would likely have yielded no ground at that time either. Simply put, even if the Commonwealth turned over discovery the day it was requested, Chavez would have been in the same position he is today with regard to interviewing these individuals. For these reasons, this court thus finds any argument that Chavez was prejudiced by the inability to interview these individuals before they retained the assistance of counsel disingenuous and without merit. SeeFossa, 40 Mass. App. Ct. at 569-570 (holding trial court properly denied motion to dismiss for delayed disclosure where defendant failed to show any prejudice would occur as a result).
Chavez also argues he has been prejudiced with regard to interviewing Miguel Velasquez. Velasquez gave police a story he claimed to have heard regarding the shooting that put another individual, Juan Villaman, in Polanco's car. (May 23 Order, p. 4). Shortly before the Commonwealth turned the Velasquez interview over to Chavez, Velasquez died. As a result of the late disclosure Chavez argues he missed the opportunity to interview Velasquez, and thus, could not establish a more detailed defense.
Taking, as this court must, all the facts into consideration, this court cannot say Chavez was irretrievably prejudiced as a result of the Commonwealth's late disclosure of the Velasquez interview. Chavez now has the audiotaped interview of Velasquez. (April 17th hearing, Exhibit 18). His investigator also spoke with both Villaman (who still does not have counsel) and Cruz regarding Velasquez's statements before the police spoke with them. Although Chavez cannot now interview Velasquez, it is unclear to this court what Chavez would have gained had the police turned over the audiotape of the interview before Velasquez died. This is made even more apparent given Velasquez's story was flatly contradicted by numerous witness' testimony, (May 23 Order, pp. 5-6), and by Juan Villaman's testimony before this court that he did not know Chavez, Velasquez or other witnesses and had not seen Polanco in years. (Villaman Examination, pp. 160-162, 166-167, 190). Cruz (whose counsel sat in the courtroom during the hearing) also testified before this court he had not seen Chavez in many years and he did know or recognize the photos he was shown of Polanco, Villaman, Velasquez or other witnesses. (Cruz Examination, pp. 197-203). Without commenting on the credibility of the testimony of these two witnesses, this court still cannot say had Chavez been given the tape earlier, and had he interviewed Velasquez, he would have been "able to prepare and present [his] case in such a manner as to create a reasonable doubt that would not otherwise have existed." See Stote, 433 Mass. at 22 (dismissal of indictment not warranted where defendant did not show how late disclosure prejudiced him); Commonwealth v. Light, 394 Mass. 112, 114-115 (1985) (dismissal not warranted where prosecution conduct was not intentional in the sense that officers did not know the defendant was entitled to receive report and where defendant was not prejudiced as a result of misconduct).
Accordingly, this court finds Chavez was not prejudiced by the dilatory actions of the prosecution team. See Light, 394 Mass. at 114-115 (where no prejudice to defendant, unintentional failure to disclose exculpatory evidence insufficient to warrant dismissal). As a result, Chavez's motion to dismiss the indictments based on prosecutorial misconduct is DENIED .
ORDER
It is hereby ORDERED that Chavez's Motion to Dismiss the Grand Jury's Indictment be DENIED .
RELEASE FOR THE PUBLICATION OF JUDICIAL OPINION