Opinion
No. 12–P–957.
2013-05-14
COMMONWEALTH v. Thomas FASANO.
By the Court (RUBIN, FECTEAU & HINES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from an order dismissing its complaint against the defendant charging him with unlawful possession of a class B controlled substance and resisting arrest. The judge dismissed both charges, after hearing, on the ground that a security recording, believed to show a certain location at which the defendant was alleged to have resisted arrest, was lost or destroyed under “suspiciously egregious” circumstances. We reverse.
The recording equipment was operated and maintained by the U.S. Security Association, Inc. (association), a private company providing security services to the Newtown development in the Charlestown section of Boston. Immediately following the defendant's arrest, Boston police officers met with members of the association's security force, seeking to observe the recording of the incident. After doing so, one of the police officers requested that the recording be preserved and a copy of it made. This request was referred, by one of the security officers, to Allan Toy, an employee of Winn Residential Management, the property management company for the Newtown development. The next day, the police officer repeated the request to Toy, who then attempted to retrieve the footage. The police officer continued to follow up on his request and was told, about one week later, that the footage was lost due to a power outage. “A defendant who seeks relief from the loss or destruction of potentially exculpatory evidence has the initial burden ... to establish a reasonable possibility, based on concrete evidence rather than a fertile imagination, that access to the [evidence] would have produced evidence favorable to his cause.” Commonwealth v. Dinkins, 440 Mass. 715, 717 (2004), quoting from Commonwealth v. Neal, 392 Mass. 1, 12 (1984) (quotation marks and citations omitted). That is, the defendant must establish a reasonable possibility that the lost or destroyed evidence was in fact exculpatory. Commonwealth v. Kater, 432 Mass. 404, 418 (2000). “If a defendant meets this burden, the court proceeds to a balancing test and ‘weigh [s] the culpability of the Commonwealth, the materiality of the evidence and the potential prejudice to the defendant.’ “ Commonwealth v. Kee, 449 Mass. 550, 554 (2007), quoting from Commonwealth v. Willie, 400 Mass. 427, 432 (1987).
The judge's finding that the police officers did not, at that time, request a copy of the recording is refuted by the uncontroverted evidence, including the Boston police and the association reports.
Toy's attempt to make a copy of the recording was unsuccessful due to a malfunctioning digital video disc (DVD) drive door.
The judge concluded that the recording was not lost due to a power outage, if one occurred. While that finding is not inescapable, it was supported by the expert testimony before him. The judge found these circumstances, and the apparent removal, replacement, and loss of the hard drive in the month following the incident, “suspiciously egregious.” In the absence of a supported finding that the police played any role in the loss or the destruction of the recording, however, the loss of this evidence cannot warrant the dismissal of the charges against the defendant.
“Evidence is considered material in this context if, ‘in considering the entire record, it creates a reasonable doubt as to the defendant's guilt that would not otherwise exist.’ Commonwealth v. Otsuki, 411 Mass. 218, 231 (1991). Prejudice in this equation has not been defined in our cases any more specifically than an inquiry whether access to the missing item would have aided the defendant's case. See, e.g., Commonwealth v. Cintron, 438 Mass. 779, 785 (2003).” Commonwealth v. Kee, supra.
Significantly, however, this analysis flows from the duty of the Commonwealth to preserve evidence in its custody that is potentially material and exculpatory. “The prosecutor's obligations for proper handling of exculpatory evidence extend to material in the possession or control of members of the prosecutor's staff and ‘any others who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to his office.’ “ Commonwealth v. Harwood, 432 Mass. 290, 298 (2000), quoting from Commonwealth v. Woodward, 427 Mass. 659, 679 (1998) (holding insurance fraud bureau investigators reporting to and assisting prosecutors of Attorney General's office to be such persons). See Commonwealth v.. Woodward, supra (noting prosecution's responsibility for negligence of medical examiner). “If the failure of the police to preserve the [evidence] deprived the defendant of material, ... exculpatory evidence, the defendant's due process rights were infringed, notwithstanding the fact that the police acted routinely and in good faith.” Commonwealth v. Neal, supra at 11–12, citing Brady v. Maryland, 373 U.S. 83 (1963); United States v. Bryant, 439 F.2d 642, 652 n. 21 (D.C.Cir.1971); Commonwealth v. Pisa, 372 Mass. 590, 594, cert. denied, 434 U.S. 869 (1977).
Here, even assuming that the defendant properly established a reasonable possibility that the footage contained exculpatory evidence, the judge improperly sanctioned the Commonwealth for a loss of evidence that was never in its possession, custody, or control. The equipment that recorded the camera images, and the equipment that reproduced them, was privately owned and operated and the judge did not find that the police officers had any part in the loss of the evidence. As stated supra, a Boston police officer requested a copy of the recording later the same day on which the defendant was arrested, but was directed by the security officers to Toy, an employee of the property management company that employed the association. That Toy was ultimately not the person who had the authority to reproduce the recording was no fault of the police. In fact, Toy had attempted to comply with the officer's request and, from the record, there is no indication that the police knew or should have known to have diverted their efforts elsewhere.
Toy testified that although he typically does not copy recordings, he had attempted to do so in this instance because a police officer had asked for a copy of the recording, if
possible, during the day. The security officers, who apparently maintain the authority to copy recordings, arrive later at night.
The association was not an agent of the Commonwealth in these circumstances. Accordingly, the judge's decision to sanction the Commonwealth by dismissal of the case was error. The order allowing the defendant's motion to dismiss is reversed and the case is remanded for further proceedings to the Charlestown Division of the Boston Municipal Court.
So ordered.