Wing v. Commissioner of Probation , 473 Mass. 368 ( 2015 )

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SJC-11842
ELMER WING vs. COMMISSIONER OF PROBATION.
Suffolk. September 8, 2015. - December 28, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Criminal Records. Evidence, Criminal records, Disclosure of
evidence, Impeachment of credibility. Practice, Criminal,
Record, Disclosure of evidence, Discovery, Witness,
Confrontation of witnesses. Statute, Construction.
Constitutional Law, Access to criminal records, Witness,
Confrontation of witnesses. Due Process of Law, Disclosure
of evidence, Impeachment by prior conviction. Witness,
Impeachment. Destruction of Property.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on February 12, 2015.
The case was reserved and reported by Cordy, J.
Adam M. Bond for the plaintiff.
Sarah M. Joss, Special Assistant Attorney General, for the
defendant.
Mary Lee, Assistant District Attorney, for the
Commonwealth.
2
HINES, J. In this appeal we decide whether a criminal
defendant's right to disclosure of a prospective witness's
criminal record under the mandatory discovery provisions of
G. L. c. 218, § 26A, and Mass. R. Crim. P. 14 (a) (1) (D), as
amended, 444 Mass. 1501 (2005), extends to a criminal record
sealed under G. L. c. 276, § 100A. Elmer Wing, who stands
charged with malicious destruction of property over $250 on a
complaint issued in the Wareham Division of the District Court
Department, sought an order compelling production of the
complaining witness's sealed criminal record. A judge denied
the motion. The matter is now before us on a single justice's
reservation and report of Wing's petition for relief under G. L.
c. 211, § 3, to the full court.
Wing claims that the mandatory disclosure required by G. L.
c. 218, § 26A, and rule 14 (a) (1) (D) is not subject to an
exception for sealed criminal records. He also claims that
disclosure is necessary to effect his constitutional right to
confrontation of the complaining witness. Reading the
potentially conflicting statutes harmoniously, as we are obliged
to do, we conclude that G. L. c. 218, § 26A, and rule
14 (a) (1) (D) do not require disclosure of criminal records
3
sealed pursuant to G. L. c. 276, § 100A.1 We conclude also that
Wing has failed to establish a constitutional right to
disclosure for confrontation purposes where he seeks only
impeachment based on the witness's prior criminal conviction.
Background. We summarize only those aspects of the
procedural history pertinent to the resolution of the issues
presented in this appeal. Although the facts underlying the
charge of malicious destruction of property over $250 are not
specified in the record, the Commonwealth has not disputed
Wing's assertion that the charge is based on the allegation that
Wing caused a security gate at his property to strike and damage
the complaining witness's vehicle.2 During pretrial discovery,
Wing filed a request for mandatory discovery of the complaining
witness's criminal record under G. L. c. 218, § 26A, and rule
14 (a) (1) (D). The probation department produced the unsealed
entries in the witness's criminal record but withheld the
entries sealed pursuant to G. L. c. 276, § 100A. Wing filed a
motion to compel production of the sealed criminal record. The
judge denied the motion, and this petition for review pursuant
to G. L. c. 211, § 3, followed.
1
Although G. L. c. 276, §§ 100B and 100C, also concern
sealed criminal records, only § 100A is relevant here.
2
The Commonwealth submitted a brief in this case as an
interested party.
4
Discussion. 1. Right to review under G. L. c. 211, § 3.
The probation department contends that Wing is not entitled to
the review he seeks under G. L. c. 211, § 3, arguing that he has
failed to establish a "substantial claim" of "irremediable"
error sufficient to justify the extraordinary relief available
under the statute. See Commonwealth v. Jordan, 464 Mass. 1004,
1004 (2012). We bypass the issue, however, because, when a
single justice reserves decision and reports a case to the full
court, "we grant full appellate review of the issues reported"
(quotation omitted). Commonwealth v. Goodwin, 458 Mass. 11, 15
(2010).
2. Discovery of sealed records. The issue before us
arises in the context of a potential conflict between a
defendant's statutory right to mandatory discovery of a
witness's criminal record under G. L. c. 218, § 26A, and rule
14 (a) (1) (D), and the privacy protections accorded to former
criminal defendants by the sealing of criminal records under
G. L. c. 276, § 100A. See Commonwealth v. Pon, 469 Mass. 296,
300 (2014). We begin the analysis by providing an overview of
the relevant statutes and rule.
a. Mandatory discovery of criminal records. Wing's claim
derives from G. L. c. 218, § 26A, and rule 14 (a) (1) (D), both
of which unequivocally provide for mandatory discovery of a
witness's criminal record. General Laws c. 218, § 26A, second
5
par., applicable to criminal trials in the Boston Municipal
Court and District Court Departments, provides that "[u]pon
motion of the defendant the judge shall order the production by
the commonwealth of the names and addresses of the prospective
witnesses and the production by the probation department of the
record of prior convictions of any such witness" (emphasis
supplied). Similarly, rule 14 (a) (1) (D) of the Massachusetts
Rules of Criminal Procedure requires that "[a]t arraignment the
court shall order the Probation Department to deliver to the
parties the record of prior complaints, indictments and
dispositions of all defendants and of all witnesses" (emphasis
supplied). Thus, broadly speaking, a court has no discretion to
deny a defendant access to a witness's criminal record. Both
G. L. c. 218, § 26A, and rule 14 are silent, however, as to
their application to sealed criminal records.
The provision for mandatory discovery of a witness's
criminal record was part of a statutory reorganization of the
Massachusetts trial court system. G. L. c. 218, § 26A, as
appearing in St. 1992, c. 379, § 139.3 Prior to 1986, pretrial
discovery generally, and access to a witness's criminal record
in particular, were left to the court's discretion with
3
Mandatory discovery of witnesses' criminal records
initially applied only to the Essex and Hampden Divisions of the
District Court Department, St. 1986, c. 537, § 8, but was later
expanded to apply Statewide, St. 1992, c. 379, § 139.
6
predictably different results. See, e.g., Commonwealth v.
Adams, 374 Mass. 722, 732 (1978) (implicitly recognizing right
of access but requiring showing of prejudice to establish error
in denial of access to criminal record); Commonwealth v.
Collela, 2 Mass. App. Ct. 706, 708-709 (1974) (no error in
denying access to witness's criminal record as prosecution not
required to collect such records for defendants). The
legislative actions in 1986 and 1992 imposed two fundamental
changes that provide useful context for our consideration
whether mandatory disclosure of criminal records applies to
sealed criminal records. First, the requirement in G. L.
c. 218, § 26A, second par., that the judge
"shall issue an order of discovery . . . requiring
that the defendant be permitted to discover, inspect
and copy any material and relevant evidence,
documents, statements of persons, or reports of
physical or mental examinations of any person or of
scientific tests or experiments, within the
possession, custody, or control of the prosecutor or
persons under his direction and control,"
recognized a defendant's presumptive right to relevant routine
discovery in criminal cases.4 Second, the remaining language
requires that "[u]pon motion of the defendant the judge shall
4
Routine discovery includes those types of discovery
specified in Mass. R. Crim. P. 14 (a) (1) (A), as amended, 444
Mass. 1501 (2005), including statements by the defendant, grand
jury minutes, exculpatory facts, contact information for
witnesses, anticipated expert opinion evidence, relevant
exhibits, summaries of identification procedures, and
inducements made to witnesses.
7
order . . . the production by the probation department of the
record of prior convictions of any such witness." G. L. c. 218,
§ 26A, second par. Against the backdrop of a discovery process
entirely within the judge's discretion, the 1986 and 1992 acts,
St. 1992, c. 379, § 139, and St. 1986, c. 537, § 8, reflect a
legislative intent to streamline the discovery process by
imposing a measure of predictability and efficiency in the
treatment of routine discovery requests, including access to
criminal records. The presumptive right to routine discovery
accomplished this purpose by relieving a defendant of the
obligation to affirmatively establish a need for and right to
such information, and limited judicial discretion in discovery
orders governed by the statute. See Commonwealth v. Taylor, 469
Mass. 516, 521-522 (2014) (rule 14 facilitates automatic
production by eliminating defendants' need to request items of
mandatory discovery). Mandatory discovery of criminal records
likewise contributes to a streamlined discovery process by
removing a barrier to the exercise of the right of impeachment
as provided in G. L. c. 233, § 21.5
Amendments to rule 14 in 2004, designed to promote
efficiency in the disposition of criminal cases and to "improve
both the administration and delivery of justice," reinforced the
5
G. L. c. 233, § 21, as amended through St. 2010, c. 256,
§ 105.
8
more liberal approach to discovery as set forth in G. L. c. 218,
§ 26A. See Report of the Supreme Judicial Court Standing
Advisory Committee on the Rules of Criminal Procedure, at 73
(May 9, 2003). Rule 14 eliminated the need for a motion
"consistent with criminal procedure," G. L. c. 218, § 26A,
second par., and required automatic disclosure of the designated
information. See Reporters' Notes to Rule 14 (2004), Mass. Ann.
Laws Court Rules, Rules of Criminal Procedure, at 1507
(LexisNexis 2015-2016).
b. The sealing statute, G. L. c. 276, § 100A. In
contrast, G. L. c. 276, § 100A, prohibits, except in
circumstances not relevant here, the disclosure of a "sealed"
criminal record. The statute provides in relevant part:
"Such sealed records shall not operate to disqualify a
person in any examination, appointment or application
for public service in the service of the commonwealth
or of any political subdivision thereof; nor shall
such sealed records be admissible in evidence or used
in any way in any court proceedings or hearings before
any boards or commissions, except in imposing sentence
in subsequent criminal proceedings . . . ." (emphasis
supplied).
G. L. c. 276, § 100A, fourth par. It mandates that "[t]he
commissioner [of probation], in response to inquiries by
authorized persons other than any law enforcement agency, any
court, or any appointing authority, shall in the case of a
sealed record . . . report that no record exists" (emphasis
added). G. L. c. 276, § 100A, sixth par.
9
The impetus for the enactment of G. L. c. 276, § 100A, was
the Commonwealth's "compelling interest in providing privacy
protections for former criminal defendants" by prohibiting
access to sealed criminal records. See Pon, 469 Mass. at 300.
The privacy protections extended to former criminal defendants
serves the broader purpose of facilitating their reintegration
into society. See id. at 306 n.19, 307.
In resolving the issue before us, we apply the familiar
rule that we construe related statutes "together so as to
constitute a harmonious whole consistent with the legislative
purpose." Federal Nat'l Mtge. Ass'n v. Hendricks, 463 Mass.
635, 641 (2012), quoting Board of Educ. v. Assessor of
Worcester, 368 Mass. 511, 513-514 (1975). We are obliged to
discern and give effect to the intent of the Legislature.
Oxford v. Oxford Water Co., 391 Mass. 581, 587-588 (1984).
Statutes "must be interpreted according to the intent of the
Legislature ascertained from all its words construed by the
ordinary and approved usage of the language, considered in
connection with the cause of its enactment, the mischief or
imperfection to be remedied and the main object to be
accomplished." Lowery v. Klemm, 446 Mass. 572, 576-577 (2006),
quoting Hanlon v. Rollins, 286 Mass. 444, 447 (1934).
Considering both the legislative purposes underlying the
statutes and the specific language chosen to effect those
10
purposes, we are persuaded that the judge correctly rejected
Wing's claim that the more general right to discovery of a
witness's criminal record trumps the statutorily protected
privacy interests in sealed criminal records.
First, the language of the two statutes supports our view
that sealed criminal records are beyond the reach of G. L.
c. 218, § 26A, and the automatic discovery provisions of rule
14. As noted, G. L. c. 218, § 26A, and rule 14 are silent as to
the application to sealed criminal records. Although not
dispositive, silence is a factor relevant to the interpretation
of the statute. "Where . . . a statute is 'simply silent' on a
particular issue, we interpret the provision 'in the context of
the over-all objective the Legislature sought to accomplish.'"
Seller's Case, 452 Mass. 804, 810 (2008), quoting National
Lumber Co. v. LeFrancois Constr. Corp., 430 Mass. 663, 667
(2000). Where, as explained above, the legislative objective of
G. L. c. 218, § 26A, is to provide for more efficient discovery
in criminal cases, we cannot say that disclosure of sealed
criminal records is necessary to that purpose. We are
especially reluctant to require disclosure of sealed criminal
records where to do so would contravene the explicit protections
granted to persons under G. L. c. 276, § 100A. Thus, Wing's
argument that he is entitled to the sealed record based on the
absence of a specific exclusion for sealed records is not
11
persuasive in light of the statutory scheme providing
affirmative protection for such records.
Moreover, where statutes deal with the same subject, the
more specific statute controls the more general one, so long as
the Legislature did not draft the more general statute to
provide comprehensive coverage of the subject area.
Commonwealth v. Irene, 462 Mass. 600, 610, cert. denied, 133 S.
Ct. 487 (2012); Grady v. Commissioner of Correction, 83 Mass.
App. Ct. 126, 131-132 (2013). Here, G. L. c. 276, § 100A,
offers specific guidelines limiting access to sealed records.
In contrast, G. L. c. 218, § 26A, and rule 14 are general
discovery provisions, and, as such, must yield to the more
specific protections of the sealing statute.
Wing's argument as to the limits of G. L. c. 276, § 100A,
also is unpersuasive. Wing urges us to narrowly construe the
statute's prohibitive language, "nor shall such sealed records
be admissible in evidence or used in any way in any court
proceedings." He asserts that pretrial discovery is "access"
not "use," and that § 100A only limits trial usage of sealed
records after they are obtained. The difference is illusory.
See Brittle v. Boston, 439 Mass. 580, 585 (2003) (declining to
unduly constrict phrase "criminal proceedings" so as to exclude
matters fairly within scope of criminal misconduct statute). As
Wing concedes, he seeks the sealed record to "open up other
12
proper avenues for discovery" and to "raise a defense." In the
context of § 100A, the term "use" encompasses Wing's intended
actions, and access is prohibited for that purpose.
Wing also reads the language, "nor shall such sealed
records be admissible in evidence or used in any way in any
court proceedings . . . except in imposing sentence in
subsequent criminal proceedings," as limiting §100A to
proceedings against the record holder (emphasis added). G. L.
c. 276, § 100A, fourth par. There is no such limit in the
statute. By its plain language, § 100A allows sealed records to
be utilized in sentencing proceedings, but also in proceedings
where there is reasonable cause to believe that a sealed record
may be relevant to an issue of child safety or violence against
another.6 Nothing in the text of the statute specifies that such
proceedings must be against the record holder.
Here, we also apply the rule that, where two statutes
conflict, the later statute governs because the Legislature is
presumed to be aware of existing statutes when it amends or
6
Section 100A allows the use of a sealed record in
sentencing proceedings and "in any proceedings under [G. L.
c. 119, §§ 1-39I, G. L. c. 201, §§ 2-5, G. L. cc. 208, 209,
209A, 209B, 209C, or G. L. c. 210, §§ 1-11A], [in which] a party
[has] reasonable cause to believe that information in a sealed
criminal record of another party may be relevant to (1) an issue
of custody or visitation of a child, (2) abuse, as defined in
[G. L. c. 209A, § 1,] or (3) the safety of any person . . . ."
G. L. c. 276, § 100A, fourth par.
13
enacts a new one. See Commonwealth v. Russ R., 433 Mass. 515,
520 (2001). In 2010, "the Legislature made changes to the
sealing provisions by enabling earlier automatic sealing under
G. L. c. 276, § 100A, and expanding discretionary sealing to a
broader class of nonconvictions." Pon, 469 Mass. at 305-306.
As the most recently amended statute, G. L. c. 276, § 100A, is a
renewed limitation on the mandatory discovery provision in G. L.
c. 218, § 26A.7 Given the temporal relationship between the two
statutes, we reject the proposition that a criminal defendant's
right to automatic discovery, absent the implication of a
constitutional right to a sealed criminal record, takes priority
over the later-enacted sealing statute.
The balancing of the State's "compelling interest" in
reintegrating former defendants into society promoted by G. L.
c. 276, § 100A, against the defendant's interest in a more
efficient and predictable discovery process as provided in G. L.
c. 218, § 26A, and rule 14 yields the same outcome. We are
persuaded that the more compelling policy interest is the
Legislature's concern that persons convicted of crimes have some
opportunity to become productive members of their communities
once they have paid their debt to society. Thus, we adopt an
7
Rule 14 of the Massachusetts Rules of Criminal Procedure
was amended in 2012. The amendment, however, did not change the
provision for discovery of criminal records. See 463 Mass. 1501
(2012).
14
interpretation of G. L. c. 218, § 26A, that accommodates the
Legislature's intent to insure, except in limited circumstances,
the privacy protections embodied in G. L. c. 276, § 100A.
Because Wing's mechanistic application of the automatic
discovery rule to all criminal records would frustrate the
legislative intent, we decline to adopt it in this case.
Last, we reject Wing's urging to apply the rule of lenity
in our analysis. The rule of lenity is simply inapplicable
where, as here, the statute contains no ambiguity requiring that
Wing be given the benefit of the ambiguity. See Commonwealth v.
Roucoulet, 413 Mass. 647, 652 (1992) (rule of lenity applied
only where statute is plausibly ambiguous).
c. Constitutional right to discovery of sealed records.
We next address Wing's argument that he is entitled on
constitutional grounds to discovery of the witness's sealed
criminal record. Relying on Davis v. Alaska, 415 U.S. 308
(1974), and Commonwealth v. Elliot, 393 Mass. 824 (1985), Wing
asserts that his constitutional right to confrontation requires
access to sealed records for impeachment purposes. The
probation department counters that a defendant's constitutional
right to confrontation is not implicated where he seeks only to
impeach the credibility of a witness based on a prior
conviction. We agree.
15
The right of confrontation encompasses the impeachment of a
witness with a record of convictions. This right, however, is
limited to reasonable impeachment, subject to the court's
discretion. See Commonwealth v. Paulding, 438 Mass. 1, 12
(2002). In Commonwealth v. Ferrara, 368 Mass. 182 (1975), we
outlined the parameters of the right to impeachment based on a
prior conviction, observing that "[w]e are aware of no
constitutional principle which confers on a defendant in every
case a right to impeach the credibility of a witness by proof of
past convictions or past delinquencies." Id. at 186-187. See
also Davis, 415 U.S. at 321 (same) (Stewart, J., concurring).
Following Ferrara, supra, our cases consistently have held that
the court may exercise its sound discretion in ruling on a
defendant's right to impeachment by a record of prior
convictions.8 Wing, claiming only a right of impeachment based
on the witness's sealed record of prior convictions, is subject
to the limitation articulated in Ferrara, supra at 187 (juvenile
records must show "rational tendency" to show bias of witness).
In the absence of a showing that the judge abused her discretion
8
See, e.g., Commonwealth v. Harris, 443 Mass. 714, 726-727
(2005) (judicial discretion is prerequisite to use of prior
convictions as impeachment evidence); Commonwealth v. Joyce, 382
Mass. 222, 224-226 (1981) (not all of complainant's prior
prostitution charges admissible because only certain charges
touched on possible motive to lie); Commonwealth v. Santos, 376
Mass. 920, 924 (1978) (witnesses' juvenile records not always
admissible to impeach credibility).
16
in denying the right of access to the sealed record for
impeachment on this basis, Wing's claim must fail.
It is true that we have recognized a defendant's
entitlement "as a matter of right to reasonable cross
examination for the purpose of showing bias or motive."
Commonwealth v. Santos, 376 Mass. 920, 924 (1978). However,
Wing has failed to demonstrate that he is entitled to disclosure
of the witness's sealed criminal record for this purpose. Wing
has failed to establish a nexus between the witness's sealed
criminal record and its potential to reveal bias or a motive to
prevaricate. See Ferrara, 368 Mass. at 186-187. At most, he
suggests that his suspicion about "the large number of aliases"
in the unsealed criminal record prompted the request for the
sealed entries. Wing's only recourse, therefore, is to address
the witness's credibility in accordance with the impeachment
restrictions of G. L. c. 233, § 21.
Nor are we persuaded by Wing's arguments that he is
entitled to access the sealed criminal record for other
constitutional purposes. Wing claims that he is hindered in his
ability to mount a defense based on bias by the lack of access
to the sealed record. In Santos, we rejected this argument as a
basis for disclosure, noting that a defendant must "be expected
to make some explanation as to how he expects to show bias."
17
Santos, 376 Mass. at 926 n.7, quoting Commonwealth v. Cheek, 374
Mass. 613, 615 (1978).
Wing's complaint that denial of the sealed record deprives
him of information that could potentially help him access the
witness's out-of-State records is likewise without merit.
Wing's reliance on Commonwealth v. Corradino, 368 Mass. 411, 422
(1975), which permits a defendant to obtain out-of-State records
"when known facts suggest that a witness has a record
elsewhere," is misplaced. He suggests that the witness's out-
of-State record contains information that will assist him in
establishing bias. The potential existence of an out-of-State
record is insufficient for this purpose. Id. at 422-423. A
person must attest to not having convictions in other States in
order to seal a record in Massachusetts. See G. L. c. 276,
§ 100A, first par. Contrary to Wing's assertions, a sealed
record evinces the lack of an out-of-State criminal record.
Last, Wing argues, for the first time in this appeal, that
he has a constitutional right to present the first aggressor
theory of self-defense and to access the witness's sealed record
for this purpose. See Commonwealth v. Adjutant, 443 Mass. 649,
659-660 (2005). The argument has no merit. As a threshold
matter, Wing makes no attempt to show that Adjutant applies to
the property crime of malicious destruction of property over
$250 charged in the complaint. See Commonwealth v. Haddock, 46
18
Mass. App. Ct. 246, 248-249 (1999) (defense of property, unlike
self-defense, is limited to nondeadly force appropriate in kind
and degree to nature of trespass). Further, even if the
Adjutant principle is applied to the facts of this case, Wing
has failed to establish a factual basis for the defense.
Commonwealth v. Barbosa, 463 Mass. 116, 136 (2012) (self-defense
applicable only where defendant utilized appropriate means to
avoid physical contact). Nothing in the record before us
demonstrates that Wing is plausibly able to assert that the
identity of the first aggressor is in dispute and that the
victim has a history of violence. See Adjutant, supra, at 650.
Conclusion. For the reasons stated above, the judge did
not abuse her discretion in denying Wing's motion to compel
production of the witness's sealed criminal record. Based on
our interpretation of the language of the relevant statutes and
the Legislature's intent in prioritizing the policy interests
promoted by the sealing statute, the mandatory discovery
provisions of G. L. c. 218, § 26A, and Mass. R. Crim. P.
14 (a) (1) (D) do not apply to a criminal record sealed under
G. L. c. 276, § 100A. Because Wing failed to establish a
constitutional basis for access to the witness's sealed criminal
record, we decline to require its disclosure. The order denying
Wing's motion to compel production is affirmed.
So ordered.