Dist. Attorney for the N. Dist. v. Superior Court Dep't

122 N.E.3d 1051, 482 Mass. 336
CourtMassachusetts Supreme Judicial Court
DecidedMay 21, 2019
DocketSJC-12508
StatusPublished
Cited by1 cases

This text of 122 N.E.3d 1051 (Dist. Attorney for the N. Dist. v. Superior Court Dep't) 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
Dist. Attorney for the N. Dist. v. Superior Court Dep't, 122 N.E.3d 1051, 482 Mass. 336 (Mass. 2019).

Opinion

LOWY, J.

**336This case stems from three postconviction orders, issued by three different Superior Court judges on the same preprinted form, requiring that exhibits in the clerk's office of the **337Superior Court in Middlesex County (clerk's office) be transferred to local police departments. The exhibits at issue are two firearms, live ammunition, a spent projectile and casing, other spent casings, a BB gun, and a baby carriage. The district attorney for the northern district petitioned a single justice of this court pursuant to G. L. c. 211, § 3, seeking to vacate the orders and to require that all exhibits that had been transferred to police departments be returned to the clerk's office. The single justice reserved and reported the case to the full court.

The issue before us is whether the clerk's office or the police departments are responsible for retaining the exhibits in these three separate criminal trials, each of which resulted in conviction. We conclude that the exhibit-transfer orders in two of the cases should be affirmed, and the order in the third case affirmed in part and remanded in part.

The broader issue is how to allocate responsibility for retaining and preserving exhibits after criminal trials to maintain the integrity of those exhibits. The importance of properly storing exhibits cannot be overstated. Without exhibit preservation, innocent people convicted of crimes may linger in prison for decades because they are unable to perform forensic tests through existing or emerging technologies. And with respect to those guilty of criminal offenses whose convictions are overturned or for whom the jury were unable to reach a verdict, the loss of exhibits or the compromising of the chain of custody might prevent reprosecution.

With the limitations discussed infra, courts, and particularly clerks' offices, have a statutory duty to secure, preserve, and retrieve exhibits admitted in criminal cases that result in conviction. Unfortunately, most of the court houses in this Commonwealth lack the facilities and trained staff to meet their statutory responsibility. Clerks' offices do the best they can with the resources and facilities provided, but what is needed is a state of the art facility staffed by trained professionals with appropriate organizational and retrieval capability and with climate control to preserve adequately forensic and *1053scientific evidence. The need to preserve adequately these exhibits presents the three branches of government with a grave challenge that raises questions about the fair administration of justice. There is a shared responsibility among the branches of government to solve this problem. No branch is capable of solving it alone.

Background. Rigoberto Escobar, Matthew Thomas, and Timothy Berry were each tried and convicted of various crimes in the **338Superior Court in Middlesex County.1 In Escobar's trial, the Commonwealth introduced in evidence a .40 caliber firearm. On the same day that Escobar was found guilty, the judge signed a form order returning the firearm to the Everett police department.2 The Commonwealth moved twice for reconsideration, asking the judge to order that the firearm be retained and stored by the clerk's office. After a hearing on each motion, the judge denied the motions in a written decision and ordered that the firearm remain at the Everett police department.

In Thomas's trial, the Commonwealth offered in evidence a BB gun and a baby carriage. After Thomas's conviction, the clerk's office submitted to the judge a form order to transfer the BB gun and baby carriage to the Lowell police department. The Commonwealth filed a motion requesting that the judge order the clerk's office to retain the exhibits. After a hearing, the judge denied the motion in a written decision and ordered that the exhibits be returned to the Lowell police department. The judge also signed the form order. The Commonwealth then filed a motion for reconsideration, which the judge denied in an order written on the face of the motion.

Finally, in Berry's trial, the Commonwealth offered in evidence a .45 caliber handgun, live ammunition, a spent projectile and casing, and other spent casings. The clerk's office asked the judge to sign a form order returning the exhibits to the Lowell police department, and the Commonwealth filed a motion requesting that the exhibits remain in the clerk's office. Without issuing a written decision and after a hearing, the judge denied the Commonwealth's motion and signed the form order.

**339Discussion. 1. A hodgepodge of statutes and rules governs the retention in Superior Court cases of nondocumentary exhibits such as those at issue here.3 This framework makes clerks' offices responsible for exhibits unless a judge orders otherwise. Rule 14 of the Rules of the Superior Court *1054(1976) requires clerks to retain "[e]xhibits other than hospital records" for a certain period of time. And according to the Massachusetts Rules of Appellate Procedure,4 after an appeal is commenced the clerk is responsible for maintaining the record, including exhibits, and for transmitting exhibits to appellate courts upon request.5 See Mass. R. A. P. 8 (a), as appearing in 481 Mass. 1611 (2019) (record includes "documents and exhibits on file"); Mass. R. A. P. 9 (a) (1), as appearing in 481 Mass. 1615 (2019) ("clerk shall ... ensure that all exhibits are properly numbered and labeled" and "shall maintain the file until the final disposition of the appeal, unless otherwise ordered by a judge"); Mass. R. A. P. 9 (b), as appearing in 481 Mass. 1615 ("lower court ... shall not transmit any exhibit to the appellate court unless pursuant to an order of the appellate court or a justice thereof").

Most importantly, the evidence preservation statute, G. L. c. 278A, § 16 (a ), requires governmental entities "in possession of evidence or biological material" related to the investigation of a crime of which someone was convicted to "retain such evidence or biological material for the period of time that a person remains in the custody of the commonwealth or under parole or probation supervision in connection with that crime .... Each governmental entity shall retain all such evidence or biological material in a manner that is reasonably designed to preserve the evidence and biological material and to prevent its destruction or deterioration." 6 ,7

**340This retention requirement applies to clerks' offices once an exhibit is admitted in evidence, at which point the evidence is in the clerk's possession. See G. L. c.

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Bluebook (online)
122 N.E.3d 1051, 482 Mass. 336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dist-attorney-for-the-n-dist-v-superior-court-dept-mass-2019.