Commonwealth v. Tamayo

11 Mass. L. Rptr. 418
CourtMassachusetts Superior Court
DecidedFebruary 15, 2000
DocketNo. 88-3512
StatusPublished

This text of 11 Mass. L. Rptr. 418 (Commonwealth v. Tamayo) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Tamayo, 11 Mass. L. Rptr. 418 (Mass. Ct. App. 2000).

Opinion

Fabricant, J.

INTRODUCTION

Defendant Carlos Tomayo is charged with possession of cocaine with intent to distribute, in violation of G.L.c. 94C, §32. During a ten-year period when he was on default, the cocaine and certain other evidence were destroyed. Claiming that the destruction of evidence deprives him of access to potentially exculpatory material, thereby denying him due process, he now seeks dismissal of the charge, or in the alter native, exclusion of evidence regarding the missing material. For the reasons that will be explained, these motions will be denied.

BACKGROUND

The Commonwealth represents that its evidence at trial would be, in substance, as follows. On November 22, 1988, a maintenance worker was fixing a leak in the ceiling of the basement of the Malden apartment where the defendant lived. The worker found two aluminum-foil packages containing plastic bags filled with a white rock substance. He called the Malden Police Department, and Sergeant David Ritchie and Inspector John Rivers responded. In the area of the basement ceiling where the maintenance worker had discovered the aluminum packages, Inspector Rivers found a white envelope with an elastic band around it, with the return address of the Bank for Savings in Malden. The envelope held money order receipts from various banks in various amounts, totaling over $15,000, all payable to “Oscar Tamayo,” whom the police learned was the defendant’s brother. As the officers were leaving the building, the defendant entered. Sergeant Ritchie approached and showed the defendant one of the receipts. The defendant responded that he had been in possession of such a receipt earlier, but had given it to someone whose name he could not remember. The officers arrested the defendant, and then obtained and executed a search warrant for his car, in which they found additional money order receipts payable to Oscar Tamayo. Subsequent laboratory analysis identified the substance inside the plastic bags as 175 grams of cocaine with a 96% purity. Eight fingerprints lifted from various of the materials found were identified as matching those of the defendant. One of the fingerprints was found on the bank envelope, one on one of the plastic bags, and one on each of six money order receipts.

The defendant was indicted in December 1988. At his arraignment on December 15, 1988, the Court set bail at $30,000 cash, and scheduled a pretrial conference for January 11, 1989. The defendant posted bail on December 16, 1988, but failed to appear on January 11, 1989, and a default warrant issued. More than a decade later, a tip to the State Police led to his arrest on the default warrant on September 17, 1999. New counsel then initiated discovery, through which he learned of the destruction of evidence. Thereafter, he requested independent analysis of the evidence, and then filed the present motions.

FINDINGS OF FACT

At an evidentiary hearing on these motions, the only witness presented was Inspector Rivers of the Malden Police Department. Lacking any present memory regarding the destruction of the evidence in this case, Inspector Rivers testified as to the general custom and practice of the Malden Police Department with respect to the preservation and destruction of physical evidence. His testimony in this regard was uncontested. Based on that testimony, along with documents provided, the Court finds as follows.

[419]*419Because of space limitations in its evidence storage rooms, the Malden Police Department has, and at all times relevant to this matter has had, a practice of periodically purging physical evidence kept in its evidence rooms. When a purge is being conducted detectives are assigned to examine all of the evidence in the evidence room, with each detective assigned to examine the items contained in particular bins, and to conduct an inquiry into the status of the particular case that each item of evidence relates to, so as to evaluate the likelihood that destruction of that evidence would in any way interfere with any continuing prosecution of the case. Based on the results of that inquiry, the assigned detective makes a determination as to whether each item of evidence should be retained or destroyed, and then submits the necessary paperwork to seek court orders authorizing destruction. In determining whether evidence in a particular case should be destroyed, the assigned detective considers the status of the case, including whether it is open or closed, whether a conviction is on appeal, whether the defendant has defaulted, and if so whether any available information indicates the likelihood of recovery. With respect to controlled substances, the detectives also consider the security risks involved in holding large quantities of such materials, and the sufficiency for purposes of prosecution of a certificate of analysis, in some instances along with a small sample of the material. With respect to non-drug evidence, the detectives follow the same process, giving consideration to such factors as the size of the items, how much other material is in the evidence room at the time, and other factors bearing on the need to maintain the items.

The Malden Police Department conducted its purging process in October of 1989, some nine months after the defendant’s default. The detectives assigned to examine the evidence involved in this case were Detectives Green and Chambers, both of whom are presently unavailable, one having retired and moved out of the Commonwealth, and the other on injury leave. In accord with the Malden Police Department’s usual practice, based on the evaluation made by Detectives Green and Chambers, and pursuant to authorization obtained from the Malden District Court, the cocaine was destroyed on October 12,1989. The fact of the defendant’s default was known to the police and available for consideration in decision-making with respect to destruction of the evidence. At the time of the hearing on the present motions, Inspector Rivers had a vague recollection that the police had received information from some unidentified source to the effect that the defendant had fled the United States and returned to his native Colombia; the evidence now available does not indicate whether Detectives Green and Chambers had that information, or what role, if any, it played in their decision.

As to the envelope, plastic bags, and bank receipts, although a search of the evidence rooms in September of 1999 failed to locate them, no record exists of their destruction. Based on the evidence presented, it appears that at some time between October of 1989 and September of 1999, a decision was made to destroy those additional materials, and they were destroyed, according to the same police department practice. The information now available provides no basis for any finding as to when during that ten-year period those materials were destroyed. The Commonwealth did maintain photocopies of the envelope and bank receipts, along with a photocopy of a report of Trooper Brian O’Hara regarding his identification of the fingerprints found.1 The report indicates the item on which each fingerprint was found, and which of the defendant’s fingers Trooper O’Hara determined the print to match. The report does not, however, provide any further description of the fingerprints found, of the process or method of comparison, or of the basis for Trooper O’Hara’s conclusions. Neither the fingerprints themselves nor any photographs or other reproductions of them were preserved.

DISCUSSION

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Bluebook (online)
11 Mass. L. Rptr. 418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-tamayo-masssuperct-2000.