Commonwealth v. Wanis

426 Mass. 639
CourtMassachusetts Supreme Judicial Court
DecidedFebruary 5, 1998
StatusPublished
Cited by24 cases

This text of 426 Mass. 639 (Commonwealth v. Wanis) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Wanis, 426 Mass. 639 (Mass. 1998).

Opinion

Wilkins, CJ.

This is the first of two cases we decide today concerning the right of a criminal defendant to obtain an order requiring the production of records of the internal affairs division of a police department. See Commonwealth v. Rodriguez, post 647 (1998). The defendants were arrested and charged with certain crimes arising out of the same incident. One defendant filed a complaint with the Boston police department against one of the police officers who arrested him. The police department’s internal affairs division took statements from percipient witnesses. The defendants seek discovery of those statements. We conclude that an order to produce such statements is generally appropriate in criminal cases and specifically so in the cases before us.

The record contains neither a statement of agreed facts nor an answer to the complaints, but the parties appear to agree that the criminal charges are based on events substantially as alleged in the complaint of the Boston police department, filed pursuant to G. L. c. 211, § 3, with a single justice of this court. On the evening of February 6, 1997, Officer Lamattina of the Boston police department was performing a paid detail, while dressed in full uniform, at the intersection of State and Commercial Streets near Faneuil Hall. At approximately midnight, Lamattina saw three men passing through an area that was secured by yellow police tape for safety reasons. When Lamattina told these men that the area had been blocked off for their safety and asked them to walk around it, one of the men raised a cane above his head in a threatening manner. As Lamattina attempted to subdue this man, another man reached into the pocket of his leather jacket, while the third attempted to intervene on behalf of the other two. Fearing for his safety, Lamattina removed his service revolver from its holster and ordered all three men to stand against a wall. Back-up officers arrived, and the men were [641]*641arrested on one or more of the following charges: assault and battery by means of a dangerous weapon, assault and battery on a pobce officer, resisting arrest, and being a disorderly person. Four days later, one of the defendants filed a complaint against Lamattina with the Boston pobce department.

Subsequently, counsel for two of the defendants moved for the production of evidence from the records of the pobce department and of the Commonwealth. On August 13, 1997, a judge of the Boston Municipal Court Department, after permitting the pobce department to argue its position, entered an order requiring that each defendant “receive all statements relating to this case by pobce, other witnesses and co-defendants in the custody of the Commonwealth including pobce department.”2 The parties seem to agree that the order concerns only statements of witnesses to the incident that led to the charges against the defendants, and does not concern matters related only to the complaint.against the pobce officer. The order thus requires the production of statements of percipient witnesses obtained during the ongoing investigation conducted by the internal affairs division of the Boston pobce department.

The Boston pobce department and the Commonwealth then separately filed complaints with a single justice of this court, pursuant to G. L. c. 211, § 3, seeking relief from the interlocutory orders. The single justice reserved and reported the two cases to the full court on a record consisting of the complaints and the defendants’ oppositions.

The police department's petition for rebef relied solely on a claim that internal affairs records are exempt from disclosure as public records. The police department argues that the materials subject to the order are (1) “investigatory materials,” which G. L. c. 4, § 7, Twenty-sixth (/), exempts from disclosure and (2) materials relating to a person, “the disclosure of which may constitute an unwarranted invasion of personal privacy,” which G. L. c. 4, § 7, Twenty-sixth (c), exempts from disclosure. The pobce department argues that the defendants’ right to disclosure, therefore, must be decided by the balancing of interests prescribed in Commonwealth v. Fuller, 423 Mass. 216, 225-227 [642]*642(1996), which concerned a defendant’s right of access to evidence protected by a statutory privilege.3

The Commonwealth’s petition under G. L. c. 211, § 3, challenged the production order on the additional ground that, it had neither possession nor control of the documents, and that hence they were not documents of an exculpatory nature that Mass. R. Grim. P. 14, 378 Mass. 874 (1979), requires the prosecution to produce. The Commonwealth also contended that a judge, in deciding whether to order production of records of an internal affairs division of a police department, should apply the standards stated in Commonwealth v. Fuller, supra, and asserted that the defendants had failed to meet those standards. The Commonwealth argues before us that it, not a judge, should decide whether the records of an internal affairs division contain information that must be disclosed in response to a motion to produce.

1. A defendant’s right of access to information gathered by an internal affairs division does not turn on whether the investigatory materials are or are not subject to disclosure as public records. See G. L. c. 66, § 10, generally requiring disclosure of public records, and G. L. c. 4, § 7, Twenty-sixth, providing certain exemptions. Even if the custodian of internal affairs documents could meet the statutory burden (G. L. c. 66, § 10 [c]) of showing with specificity that an exemption applies, a. criminal defendant may nevertheless have a right to obtain such documents. In Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976),. we stated that, if a defendant wants information not available as a public record, “such discovery should follow normal procedures in criminal cases where its availability lies in the discretion of the trial judge under standards developed by this court.”

The defendants do not argue that the subject records are public records under G. L. c. 4, § 7, Twenty-sixth. Thus, the applicability of statutory exemptions is not in issue here, as they [643]*643were in Globe Newspaper Co. v. Police Comm’r of Boston, 419 Mass. 852, 858-859 (1995), and WBZ-TV4 v. District Attorney for the Suffolk Dist., 408 Mass. 595, 603 (1990). The defendants are correct in arguing that the fact that material is not a public record does not answer the question of the defendants’ right of access to information in the hands of a police department’s internal affairs division. See Boston Police Superior Officers Fed’n v. Boston, 414 Mass. 458, 466-467 (1993); Bougas v. Chief of Police of Lexington, supra; Town Crier, Inc. v. Chief of Police of Weston, 361 Mass. 682, 691 (1972).

2. The Commonwealth should not have been subjected to an order to produce documents from the police department’s internal affairs division. There has been no showing that the prosecutor had access to these materials, or that the police department was obliged to provide its investigative files to the prosecution.

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Bluebook (online)
426 Mass. 639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-wanis-mass-1998.