Judicial Court, Superintendence of inferior courts. Practice,
Criminal, Disclosure of evidence, Discovery.
Booker for the respondent.
P. Zanini, Assistant District Attorney (AlexaRae Wright,
Assistant District Attorney, also present) for the
Cruz appeals from a judgment of a single justice of this
court allowing the Commonwealth's petition for relief
pursuant to G. L. c. 211, § 3. The Commonwealth sought
relief from the portion of a discovery order that, in
essence, required the prosecutor to produce certain
exculpatory information from the personnel files of the
Boston Police Department and its internal affairs division.
charged in the Boston Municipal Court with two counts of
unlawful possession of a firearm, unlawful possession of
ammunition, drug possession, two counts of possession with
intent to distribute drugs, and receiving stolen property. In
October 2017, a judge in that court granted in part
Cruz's motion for discovery from the Commonwealth,
including a request, appearing in paragraph two of the
endorsed motion, that the Commonwealth produce
"[d]ocuments and information concerning whether [the
Boston Police Department] has ever admonished, disciplined,
investigated, [or] reprimanded" the police officer who
drafted the search warrant affidavit in Cruz's case. At
the hearing on the motion, the judge made clear to the
prosecutor that "in [her] view that mean[t] personally
looking through [internal affairs division] materials,
personnel files of this officer, and finding out from
supervisors whether there's anything of that
nature." The Commonwealth sought reconsideration of the
order insofar as it purported to require the prosecutor,
pursuant to Mass. R. Crim. P. 14, as appearing in 442 Mass.
1518 (2004), to review files not in the Commonwealth's
"possession, custody or control." The motion judge
denied the request for reconsideration, and the Commonwealth
then sought relief from a single justice of this court
pursuant to G. L. c. 211, § 3.
hearing, the single justice allowed the Commonwealth's
petition, reasoning that "[h]ere, as in
Commonwealth v. Wanis, 426 Mass.
639, 644 (1998), 'the judge erred in ordering discovery
pursuant to rule 14 of records of the internal affairs
division of a police department against a prosecutor who did
not have possession, custody, or control of any of the
requested information.' Commonwealth v.
Rodriguez, 426 Mass. 647, 648 (1998)." The
single justice further found that to the extent that the
request at issue was made pursuant to Mass. R. Crim. P. 17,
378 Mass. 885 (1979), the requirements of neither rule 17 nor
Wanis were satisfied.
review a decision of the single justice . . . under G. L. c.
211, § 3, only for 'clear error of law or abuse of
discretion.'" Commonwealth v.
Bertini, 466 Mass. 131, 137 (2013), quoting
Caggiano v. Commonwealth, 406
Mass. 1004, 1005 (1990). Here, the single justice properly
vacated paragraph two of the discovery order to the extent it
"require[d] the prosecutor assigned to the case to look
through the internal affairs division file and/or other
personnel files of the Boston police officer who wrote the
search warrant affidavit," where such materials were not
in the possession, custody, or control of the
Commonwealth. But by vacating the provision of the
discovery order that contained this requirement, the single
justice did nothing to relieve the Commonwealth of its
ongoing duty to disclose exculpatory information -- including
any material, exculpatory information related to past
discipline or internal investigation of the officer in
question -- to the extent such information is in the
possession, custody, or control of the prosecution team.
Wanis, 426 Mass. at 644. See Mass. R. Crim. P. 14
Cruz is not necessarily foreclosed from seeking additional
materials from the Boston Police Department through a motion
pursuant to rule 17, provided that he can meet the applicable
legal standard under that rule. See Wanis, 426 Mass.
at 643-644. See also Commonwealth v.
Dwyer, 448 Mass. 122, 139-147 (2006) (discussing
protocol for pretrial inspection of third-party records under
Mass. R. Crim. P. 17); Commonwealth v.
Lampron, 441 Mass. 265, 268 (2004) (holding that
"[r]egardless of how a defendant styles his request,
pursuit of documents and records in the possession of a
nonparty must be considered and analyzed under rule 17 [a]
"); Rodriguez, 426 Mass. at 648-650
(concerning rule 17 discovery of certain records of internal
 The parties dispute whether the
challenged portion of the discovery order was issued pursuant
to Mass. R. Crim. P. 14 or Mass. R. Crim. P. 17, 378 Mass.
885 (1979). Because the dispute centers on the scope of the
prosecutor's obligations under the discovery
order (rather than the Boston Police Department's), we
treat it primarily under rule 14.
 Cruz argues that the single justice
erred in determining that the discovery order was modified by
the trial judge's comments at the hearing to include this
requirement. We see no error in the single justice's
interpretation. In any event, to the extent the single
justice may have gone further than necessary in vacating the
entirety of paragraph two, as opposed to merely clarifying
the prosecutor's obligations ...