Commonwealth v. Gandia ( 2023 )

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SJC-13341
COMMONWEALTH vs. JONATHAN GANDIA.
May 19, 2023.
Practice, Criminal, Discovery, Disclosure of identity of
informer. Privileged Communication. Evidence, Informer,
Privileged communication, Relevancy and materiality.
This case is one of two that we decide today in which the
Commonwealth seeks relief from a trial court order requiring it
to disclose information regarding a confidential informant. See
Commonwealth v. Whitfield, 492 Mass. (2023).1 For the
reasons discussed infra, we conclude that the motion judge
abused her discretion by failing to conduct the two-stage
inquiry applicable to such motions. See id. at ;
Commonwealth v. Bonnett, 472 Mass. 827, 846 (2015), S.C., 482
Mass. 838 (2019). We further conclude that, based on the
1 This case comes before us on a reservation and report by a
single justice of the Commonwealth's petition pursuant to G. L.
c. 211, § 3.
2
undisputed documentary record in this case, disclosure of the
identity2 of the confidential informant is unwarranted.3
1. Facts. We summarize the facts as found by the motion
judge, supplemented by undisputed facts from the record.4 See
Whitfield, 492 Mass. at . On November 10, 2021, the
confidential informant in this case, who was a registered
informant with the Springfield police department's firearms
investigation unit (FIU), contacted police to report
observations of drug transactions occurring in that city. The
informant's identity was known to a captain in the Springfield
police department and other supervisory officers in the FIU, as
the informant previously had provided information resulting in
the issuance of numerous search warrants resulting in seizures
of firearms, "crack" cocaine, heroin, and large sums of cash.
On this occasion, the informant notified Springfield police
Officer Felix Aguirre that a man named "John" was dealing crack
cocaine at a certain building on School Street (building). The
informant described John as having a large beard and wearing a
black hooded sweatshirt, black pants, and a matching black hat
backward. The informant explained that John was carrying crack
cocaine and money in a black "fanny pack" and that he was
driving a white Dodge Durango sport utility vehicle (SUV) with
black accents and distinctive black rims. The informant stated
that the SUV was parked at the corner of School and Temple
2 In the defendant's motion for disclosure, he requested the
informant's name and address, as well as additional information
relating to the informant's interactions with law enforcement.
The motion judge allowed the motion "for disclosure of the
identity of the Commonwealth's [i]nformant," and on appeal, both
parties treat the order as one ordering disclosure of the
informant's identity only. Should the defendant renew his
request for information short of name and address, the motion
judge should assess the request in accordance with the
principles we reaffirm today in Commonwealth v. Whitfield, 492
Mass. , (2023).
3 We acknowledge the amicus brief of the Massachusetts
Association of Criminal Defense Lawyers.
4 The Commonwealth's unopposed motion to supplement the
record pursuant to Mass. R. A. P. 8 (e), as appearing in 481
Mass. 1611 (2019), to include the transcript dated May 10, 2022,
from the hearing in the District Court on the defendant's motion
for disclosure, is allowed.
3
Streets, which Aguirre knew from his prior experience to be a
high crime area where police have received numerous complaints
for "open air drug dealing."
Aguirre went to the intersection of School and Temple
Streets, where he observed the SUV parked at the corner, as the
informant described. Based on the SUV's registration
information, Aguirre determined that the SUV was registered to
the defendant,5 Jonathan Gandia, whose driver's license had been
suspended. Aguirre and Springfield police Detective Robert
Patruno, who had arrived at the scene and observed the
defendant, compared the defendant's photograph on file in the
registry of motor vehicles with the appearance of the individual
they believed to be John, and determined that John was the
individual in the photograph.
Other FIU officers arrived in the area of School and High
Streets and began conducting surveillance. They witnessed the
defendant come and go from the doorway of the building, converse
with people in the entryway, and admit them to the building or
follow them in and then follow behind them when they left a few
minutes after entering. Through their observations, the
officers determined that the defendant's actions were consistent
with "open air drug dealing."
While officers were conducting surveillance, Aguirre
remained in constant communication with the informant. At one
point, the informant told Aguirre that the defendant was
preparing to leave the building. The informant then mentioned
that he had observed the defendant make a drug transaction,
during which time the defendant had "shown a large amount of
crack cocaine in a clear plastic bag and had placed it into his
fanny pack." When the defendant got into and started his SUV,
officers surrounded him, ordered him out of the vehicle, pat
frisked and arrested the defendant, and recovered crack cocaine
and cash.
2. Prior proceedings. On November 12, 2021, a District
Court judge issued a criminal complaint against the defendant,
charging him with trafficking in cocaine, a class B drug, of
eighteen grams or more, but less than thirty-six grams, in
violation of G. L. c. 94C, 32E (b) (1), and unlicensed operation
of a motor vehicle in violation of G. L. c. 90, § 10. On
5 Although the Commonwealth commenced this action by filing
a petition in the county court, for convenience we refer to the
respondent as the "defendant."
4
February 23, 2022, the Commonwealth moved to amend the
trafficking charge to possession with intent to distribute a
class B controlled substance in violation of G. L. c. 94C,
§ 32A (a), which motion was allowed.
On May 6, 2022, the defendant, through counsel, moved for
disclosure of the informant's name and address, as well as
details relating to the informant's credibility, such as how
long police and other law enforcement agencies had employed the
informant, the number of investigations in which the informant
participated, and any compensation the informant received,
including charge reductions, changes in custodial status, and
immunity offered in exchange for testimony. A hearing was held
on the motion for disclosure; no witnesses testified at the
hearing. The judge subsequently issued an order allowing the
defendant's motion to disclose the identity of the
Commonwealth's informant. The Commonwealth filed a motion to
stay in the District Court, so that it could pursue a G. L.
c. 211, § 3, petition, which motion was allowed; and on July 18,
2022, the Commonwealth filed its petition for relief from the
order of disclosure in the county court. The defendant opposed
the motion. A single justice of this court stayed the trial
proceedings and subsequently reserved and reported the matter to
the full court.
3. Discussion. We review a motion judge's order requiring
disclosure of the identity of a confidential informant for an
abuse of discretion. Whitfield, 492 Mass. at . Where the
motion judge's factual findings are based solely on documentary
evidence, we afford them no deference. Id. at .
As a matter of substantive law, this case is governed by
the legal framework that we clarify and reaffirm today in
Whitfield, 492 Mass. at . See Bonnett, 472 Mass. at 846.
Under that framework, a motion judge must apply a two-stage
inquiry to a motion for disclosure of the identity of a
confidential informant:
"In the first stage of the analysis, a court makes a
preliminary determination whether the Commonwealth properly
asserted the informant privilege, see Mass. G. Evid.
§ 509(a)(1), and if so, whether the defendant has met his
or her burden to challenge the Commonwealth's invocation of
the privilege by establishing 'an impermissible
interference with [the defendant's] right to present a
defense.' Bonnett, supra. The informant privilege may be
asserted by the Commonwealth where the Commonwealth
5
otherwise would be required to provide an informant's
identity to a defendant as part of its discovery
obligations under Mass. R. Crim. P. 14[, as appearing in
442 Mass. 1518 (2004)]. See id., quoting [Roviaro v.
United States, 353 U.S. 53, 59 (1957)]. Should a defendant
wish to overcome the informant privilege, the defendant
bears the burden of challenging the Commonwealth's
assertion. [Commonwealth v. Dias, 451 Mass. 463, 464
(2008)]. 'We have characterized a defendant's obligation
at this juncture as "relatively undemanding," but it does
require the defendant to articulate a basis sufficient for
the judge to "assess the materiality and relevancy of the
disclosure to the defense, if that relevancy is not
apparent from the nature of the case."' [Commonwealth v.
D.M., 480 Mass. 1004, 1006 (2018)], quoting Bonnett, supra
at 847.
"Only if both the Commonwealth and the defendant have met
their burdens in the initial stage should a judge then
proceed to the second stage of the analysis, where the
judge must 'decide whether the informant's identity and
concomitant information are sufficiently "relevant and
helpful to the defense of an accused" that it must be
disclosed.' Bonnett, 472 Mass. at 847, quoting Dias, 451
Mass. at 468. This determination necessitates a balancing
of 'the public interest in protecting the flow of
information against [the defendant's] right to prepare his
[or her] defense.' Bonnett, supra at 847-848, quoting
Roviaro, 353 U.S. at 62. The inquiry at the balancing
stage must be case-specific: '[w]hether a proper balance
renders nondisclosure erroneous must . . . tak[e] into
consideration the crime charged, the possible defenses, the
possible significance of the informer's testimony, and
other relevant factors.' Roviaro, supra. Where disclosure
(1) is sufficiently 'relevant and helpful to the defense of
an accused' or (2) 'is essential to a fair determination of
a cause, the privilege must give way.' Dias, supra,quoting Roviaro, supra at 60–61."
Whitfield, supra at .
Here, it is undisputed that the motion judge failed to
conduct this two-stage inquiry. This was an abuse of
discretion. See Bonnett, 472 Mass. at 850 (remanding for
further proceedings "to conduct the requisite 'orderly
appraisal'" of factors relevant to motion for disclosure of
informant's identity). Moreover, for the reasons discussed
6
infra, we conclude that it is apparent on the undisputed record
before us that disclosure is unwarranted under the applicable
legal framework.
First, the Commonwealth properly asserted the informant
privilege, where it raised sufficient concern for the safety of
the informant should his or her identity be disclosed and it
asserted that revealing the identity of the informant would have
a "chilling effect" on such informants in other cases making it
"unlikely that they would continue to participate in
investigations." The defendant argues that the Commonwealth's
invocation of the privilege is insufficient because it fails to
offer "specific" and "tangible" safety concerns in the
circumstances of this case. We disagree. Here, the
Commonwealth argued that disclosure would place the informant in
danger where the informant had provided numerous tips to the
Springfield police department in the past, leading to the
seizure, pursuant to warrants, of various forms of contraband,
including firearms. This was sufficient to invoke the
privilege. See D.M., 480 Mass. at 1005 (privilege properly
asserted where informant's prior involvement in firearms cases
would result in danger to informant if identity revealed).
Next, we conclude that, in the circumstances of this case,
the defendant has met his "relatively undemanding" burden at the
initial stage of the inquiry to show that the informant's
identity is material and relevant to his defense at trial, see
Bonnett, 472 Mass. at 847; Commonwealth v. Kelsey, 464 Mass.
315, 323 (2013), where the informant was present during the
events leading up to the defendant's arrest, and the defendant
asserts that the informant is the only nongovernment witness
with the potential to rebut the police officers' anticipated
testimony -- arguably relevant to the element of intent to
distribute -- that people were entering and leaving the
surveilled premises in a manner consistent with drug dealing.6
6 To the extent the defendant relies on it, we reject the
motion judge's reasoning that disclosure is warranted because
the informant in this case is "essential" to a determination of
probable cause in connection with a potential motion to
suppress. Probable cause for the defendant's arrest and the
search of his vehicle arose when, on learning that the defendant
did not have a valid driver's license, officers observed him get
into the vehicle and engage the ignition. See Commonwealth v.
Uski, 263 Mass. 22, 24 (1928) (any intentional act setting in
motion power of vehicle constitutes operation of vehicle within
7
However, for the reasons discussed infra, we conclude that the
requisite balancing of the interests leads to the conclusion
that disclosure of the informant's identity is unwarranted.
At the second stage of the inquiry, a judge must assess
whether the informant's identity sufficiently is "relevant and
helpful to the defense of an accused" to require disclosure.
D.M., 480 Mass. at 1006, quoting Bonnett, 472 Mass. at 847. As
stated supra, in making this determination, a judge must
"balance[] . . . the public interest in protecting the flow of
information against the individual's right to prepare his [or
her] defense" and consider "the crime charged, the possible
defenses, the possible significance of the [privileged]
testimony, and other relevant factors" (citation omitted).
Bonnett, supra at 848. Accordingly, the inquiry at this stage
boils down to "whether disclosure would have provided material
evidence needed by the defendant for a fair presentation of his
case to the jury." Commonwealth v. Madigan, 449 Mass. 702, 706
(2007), quoting Commonwealth v. Lugo, 406 Mass. 565, 574 (1990).
Here, as the motion judge recognized, "[t]he informant in
this case did not participate in the crime charged." That is,
proof of the crime charged does not require proof of any of the
drug transactions that the informant is alleged to have
witnessed. Rather, the Commonwealth proposes to prove the crime
charged -- possession with intent to distribute -- primarily by
presenting evidence that twenty-two grams of crack cocaine and
$2,500 of cash were seized in connection with the search
following the defendant's arrest. See Commonwealth v. Sepheus,
468 Mass. 160, 164-166 (2014) (large amount of narcotics and
cash can support inference of intent to distribute).
This case therefore is governed by our well-settled
precedents holding that the identity of a mere "tipster" need
not be disclosed. See, e.g., Commonwealth v. Barry, 481 Mass.
statute governing offense of operation of vehicle while under
influence of intoxicating liquor). Moreover, as we have
observed, there is a significant distinction between "a demand
for disclosure at a pretrial hearing, where the issue is
probable cause for arrest or search, and a demand for disclosure
at trial, where the issue is the defendant's ultimate guilt or
innocence." D.M., 480 Mass. at 1006, quoting Commonwealth v.
Madigan, 449 Mass. 702, 706 n.8 (2007). See Commonwealth v.
Lugo, 406 Mass. 565, 571 (1990) ("nondisclosure is rather
readily countenanced at pre-trial hearings, but not so at the
trial itself" [citation omitted]).
8
388, 409-411, cert. denied, 140 S. Ct. 51 (2019) (disclosure not
warranted where informant was not percipient witness to crime
and was "merely relaying inadmissible, immaterial 'word on the
street' information about the [crime]"); Commonwealth v.
Maldonado, 456 Mass. 1012, 1012-1013 (2010) (potential testimony
of tipsters as to information provided hours before, and
ultimately leading to, defendant's stop was insufficient to
warrant disclosure of tipsters' identity); Commonwealth v.
Brzezinski, 405 Mass. 401, 408 (1989) (disclosure of tipster's
identity not required where informant neither participated in
crime charged nor was present during execution of search warrant
or seizure of contraband found in search). The defendant argues
that this case is distinguishable from those cases because the
Commonwealth also intends to offer the testimony of the
surveilling officers regarding the actions they observed to be
consistent with drug dealing, as additional evidence
demonstrating intent to distribute. Admittedly, the informant
witnessed at least some of the activity that will be the subject
of the officers' testimony. However, where the benefit of
impeaching the officers' testimony on this point would be
marginal at best, and where there is nothing to suggest that the
informant in fact would testify in a manner helpful to the
defendant, the defendant's interest in exploring this line of
questioning is insufficient to outweigh the government's
interests in protecting the informant's identity from
disclosure. In other words, we conclude, after balancing the
interests involved, that the information sought is not
sufficiently material or relevant to the defense to warrant
disclosure of the informant's identity in the face of the
Commonwealth's assertion of the privilege. See Bonnett, 472
Mass. at 847, citing Roviaro, 353 U.S. at 60–61.
4. Conclusion. For the reasons discussed supra, we
conclude that the motion judge abused her discretion by failing
to conduct the two-stage inquiry applicable to motions for
disclosure of information subject to the Commonwealth's
assertion of the informant privilege. Moreover, based on the
undisputed record before us, disclosure of the informant's
identity is unwarranted under the applicable legal standard.
Accordingly, we remand the case to the county court for entry of
a judgment reversing the motion judge's disclosure order and
remanding the matter to the trial court for further proceedings
consistent with this opinion.
So ordered.
9
Michael W. Locke, Assistant District Attorney, for the
Commonwealth.
Joseph N. Schneiderman for the respondent.
Luke Ryan, Molly Ryan Strehorn, & Joshua M. Daniels, for
Massachusetts Association of Criminal Defense Lawyers, amicus
curiae, submitted a brief.