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Wing v. Commissioner of Probation

Supreme Judicial Court of Massachusetts, Suffolk

December 28, 2015

Elmer Wing
v.
Commissioner of Probation

Argued September 8, 2015.

Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 12, 2015.

The case was reserved and reported by Cordy, J.

Adam M. Bond for the plaintiff.

Sarah M. Joss, Special Assistant Attorney General, for the defendant.

Mary Lee, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

OPINION

Hines, J.

In this appeal we decide whether a criminal defendant's right to disclosure of a prospective witness's criminal record under the mandatory discovery provisions of G. L. c. 218, § 26A,

Page 369

and Mass. R. Crim. P. 14 (a) (1) (D), as amended, 444 Mass. 1501 (2005), extends to a criminal record sealed under G. L. c. 276, § 100A. Elmer Wing, who stands charged with malicious destruction of property over $250 on a complaint issued in the Wareham Division of the District Court Department, sought an order compelling production of the complaining witness's sealed criminal record. A judge denied the motion. The matter is now before us on a single justice's reservation and report of Wing's petition for relief under G. L. c. 211, § 3, to the full court.

Wing claims that the mandatory disclosure required by G. L. c. 218, § 26A, and rule 14 (a) (1) (D) is not subject to an exception for sealed criminal records. He also claims that disclosure is necessary to effect his constitutional right to confrontation of the complaining witness. Reading the potentially conflicting statutes harmoniously, as we are obliged to do, we conclude that G. L. c. 218, § 26A, and rule 14 (a) (1) (D) do not require disclosure of criminal records sealed pursuant to G. L. c. 276, § 100A.[1] We conclude also that Wing has failed to establish a constitutional right to disclosure for confrontation purposes where he seeks only impeachment based on the witness's prior criminal conviction.

Background.

We summarize only those aspects of the procedural history pertinent to the resolution of the issues presented in this appeal. Although the facts underlying the charge of malicious destruction of property over $250 are not specified in the record, the Commonwealth has not disputed Wing's assertion that the charge is based on the allegation that Wing caused a security gate at his property to strike and damage the complaining witness's vehicle.[2] During pretrial discovery, Wing filed a request for mandatory discovery of the complaining witness's criminal record under G. L. c. 218, § 26A, and rule 14 (a) (1) (D). The probation department produced the unsealed entries in the witness's criminal record but withheld the entries sealed pursuant to G. L. c. 276, § 100A. Wing filed a motion to compel production of the sealed criminal record. The judge denied the motion, and this petition for review pursuant to G. L. c. 211, § 3, followed.

Discussion.

1. Right to review under G. L. c. 211, § 3.

The probation department contends that Wing is not entitled to the

Page 370

review he seeks under G. L. c. 211, § 3, arguing that he has failed to establish a " substantial claim" of " irremediable" error sufficient to justify the extraordinary relief available under the statute. See Commonwealthv.Jordan, 464 Mass. 1004, 1004, 980 N.E.2d 454 (2012). We bypass the issue, however, because when a single justice reserves decision and reports a case to the full court, " we grant full appellate review of the issues reported" ...


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