Commonwealth v. Teixeira

Brown, J.

(dissenting). I agree with the majority that there is simply no excuse for a police officer approaching any witness or party in a pending criminal matter and engaging in “deliberate and intentional” conduct likely to intimidate such a person and thereby affect the course of trial proceedings. Commonwealth v. Cronk, 396 Mass. 194, 198-199 (1985). The only question is whether a new trial could remedy any prejudice, or whether dismissal, the relief sought by the defendant in his motion at trial, is required here.

The dismissal of criminal charges is the most severe sanction a court can impose to remedy misconduct on the part of the Commonwealth. “The dismissal of a criminal case is a remedy of last resort because it precludes a public trial and terminates criminal proceedings.” Commonwealth v. Cronk, 396 Mass. at 198 . In Commonwealth v. Cinelli, 389 Mass. 197, 210 , cert. denied, 464 U.S. 860 (1983), the court held that “[ajbsent egregious misconduct or at least a serious threat of prejudice, the remedy of dismissal infringes too severely on the public interest in bringing guilty persons to justice.”

Along these lines, the Supreme Judicial Court recently observed in Commonwealth v. Mason, 453 Mass. 873, 877 (2009), that “we have never dismissed charges [on the basis of official misconduct] ... in the absence of prejudiced[ 1 ] See Com *111 monwealth v. Lewin, 405 Mass. 566, 586 (1989).” In clarifying the type of prejudice that might support dismissal, the court drew a distinction between situations in which official misconduct directly “affect[s] the right to a fair trial,” as opposed to other types of protected interests. Commonwealth v. Mason, supra. The court went on to observe that the “[prejudice required for dismissal focuses on the subsequent trial and the interference with procedural rights therein.” Ibid., quoting from Commonwealth v. Viverito, 422 Mass. 228, 231 (1996). Thus, it is where government malfeasance affects a defendant’s intratrial due process rights that the remedy of dismissal is most strongly indicated.

In Mason, supra at 879 , the police misconduct involved improper postarrest detention and so did not burden the defendant’s right to a fair trial; dismissal, the court concluded, was not required. By contrast, in the current case, the defendant’s intratrial procedural rights are directly implicated; viz, the defendant’s right to testify on his own behalf at trial. This is a fundamental constitutional right.

As the United States Supreme Court stated in Rock v. Arkansas, 483 U.S. 44, 51 (1987), quoting from Faretta v. California, 422 U.S. 806 , 819 n.15 (1975), “[t]he right to testify on one’s own behalf at a criminal trial has sources in several provisions of the Constitution. It is one of the rights that ‘are essential to due process of law in a fair adversary process.’ ” See Nix v. White- *112 side, 475 U.S. 157, 164 (1986) (right to testify on one’s own behalf in defense to a criminal charge is a fundamental constitutional right). See also In re Oliver, 333 U.S. 257, 273 (1948) (“A person’s right . . . to be heard in his defense — a right to his day in court — are basic in our system of jurisprudence . . .”); Brooks v. Tennessee, 406 U.S. 605, 612 (1972) (“Whether the defendant is to testify is an important tactical decision as well as a matter of constitutional right”).

Specifically, the right to testify is found in the compulsory process clause of the Sixth Amendment to the United States Constitution. See Washington v. Texas, 388 U.S. 14,17-19 (1967). Included within a defendant’s right to call witnesses is “a right to testify himself, should he decide it is in his favor to do so. . . . Even more fundamental to a personal defense than the right of self-representation, which was found to be ‘necessarily implied by the structure of the [Sixth] Amendment,’ ... is an accused’s right to present his own version of events in his own words.” Rock v. Arkansas, 483 U.S. at 52 , quoting from Faretta v. California, 422 U.S. at 819 . In short, “[a] defendant’s opportunity to conduct his own defense by calling witnesses is incomplete if he may not present himself as a witness.” Rock v. Arkansas, supra. See Harris v. New York, 401 U.S. 222, 225 (1971) (“Every criminal defendant is privileged to testify in his own defense . . .”).

Further, the right to testify is “a necessary corollary to the . . . guarantee against compelled testimony [found in the Fifth Amendment to the United States Constitution].” Rock v. Arkansas, supra at 52-53 . “[The Fifth Amendment’s privilege against self-incrimination] is fulfilled only when an accused is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will.’. . . The choice of whether to testify in one’s own defense ... is an exercise of the constitutional privilege.” Rock v. Arkansas, supra at 53 , quoting from Harris v. New York, 401 U.S. 222, 230 (1971), and Malloy v. Hogan, 378 U.S. 1, 8 (1964). See also Ferguson v. Georgia, 365 U.S. 570, 602 (1961) (Clark, J., concurring) (describing “right of a criminal defendant to choose between silence and testifying in his own behalf”); Jones v. Barnes, 463 U.S. 745, 751 (1983) (defendant has the “ultimate authority to [decide] . . . whether to . . . testify in his or her own behalf”).

*113 Detective Kevin Donofrio’s conduct, therefore, burdened what is unquestionably a core fundamental constitutional right, the right to testify in one’s own defense. However, in her memorandum of decision, the trial judge indicated that even if police misconduct rendered the defendant “too afraid to testify, the motion [to dismiss] still fails.” The trial judge’s conclusion in this regard was premised on her belief that, to prevail, there must be a “determination that the defendant’s testimony at trial would have led to a different result at trial.” This was error.

While deprivation of the right to testify has not been characterized as structural error, see Commonwealth v. Figueroa, 451 Mass. 566 , 572 n.5 (2008), as to which harmless error analysis is irrelevant, it nonetheless represents a grave violation of a fundamental due process protection. Moreover, it is the kind of misstep as to which harmless error analysis will often be difficult, if not impossible, to apply. The unique impact on a fact finder of a defendant’s in-court denial of the crimes charged, for example, is not readily gauged. See Rock v. Arkansas, 483 U.S. at 52 . In addition, where a criminal defendant is deterred by government misconduct from appearing in his own defense, public confidence in the fair administration of justice is placed at serious risk.

Here, defense counsel submitted an affidavit and stated at the hearing on the motions that he had explained to the defendant that, based on his assessment of the evidence, it was in the defendant’s best interest to testify, and that the defendant was choosing not to testify against his advice and the reason was the encounter with Donofrio. The defendant and Donofrio both testified regarding the encounter. According to both the defendant’s and Donofrio’s testimony and the judge’s findings, the officer stopped the defendant, stood within six to twelve inches in front of him while another officer stood behind the defendant; the officer identified himself as a police officer, handed the defendant a business card identifying himself as such, and referred to the trial, saying his niece was concerned about it. As the judge noted, profanities were used, and Officer Donofrio conceded it was not a friendly encounter nor did he intend it to be. These facts, upon which both parties agree, describe an encounter meant to intimidate; this — especially given a police *114 officer’s authority and the potential power it creates — not only objectively supports the defendant’s statement that he was afraid to testify, but also suggests a taint that the remedy of a new trial cannot cure, because the impact of the, at a minimum implicit, threat would remain. Consequently, and in view of the fact that the standard for determining whether official conduct requires dismissal of a complaint is whether a “serious threat of prejudice” (emphasis supplied), Commonwealth v. Cinelli, 389 Mass. at 210 , is posed, it seems to me that egregious government misconduct that impairs a defendant’s right to testify in his own defense poses “a serious threat of prejudice” and therefore requires dismissal. 2 No inquiry into the likely effect of such testimony is required.

Admittedly, the judge discredited the defendant’s testimony that his decision not to testify was due to Donofrio’s actions. However, it was the Commonwealth’s burden at the motion hearing to establish that the misconduct did not pose a threat of prejudice — i.e., did not induce the defendant to refrain from testifying. See Commonwealth v. Fontaine, 402 Mass. 491, 495 (1988) (government bears burden of establishing that its own egregious misconduct created no prejudice to the defendant’s position). See also Commonwealth v. Waters, 399 Mass. 708, 716 (1987) (strict standard applies to waiver of basic constitutional rights). While the defendant offered his attorney’s affidavit and his own testimony in support of his contentions, the government failed to offer any significant evidence on this point. In the circumstances here, I conclude that the judge’s finding regarding the basis for the defendant’s decision to waive his right to testify is manifestly unreasonable. 3 Moreover, as I have already noted, the judge’s determination of this point appears to have been informed, at least in part, by her mistaken belief that it was ultimately immaterial whether Donofrio’s conduct induced the defendant to waive his right to testify unless that testimony “would have led to a different result at the *115 trial.” In any event, Donoffio’s actions were objectively likely to impair the defendant’s right to testify in his own defense and, in view of the evidence adduced at the motion hearing, 4 I conclude that the requisite “serious threat of prejudice” was posed. The defendant’s motion to dismiss should have been allowed.

I am, of course, mindful of the social burdens occasioned by such a decision. However, any sanction short of dismissal is unlikely to make the defendant whole in this case. In view of the nature of the police misconduct, and the clear message of menace it embodied, how can the court be certain that the defendant’s right to testify would not be impaired at any subsequent trial? See Commonwealth v. Perrot, 38 Mass. App. Ct. 478, 481 (1995) (“[mjisconduct that causes irremediable prejudice to the defendant is ground for dismissal”). “Our emphasis has always been that any remedy should be tailored to cure the prejudice to the defendant.” Commonwealth v. Hine, 393 Mass. 564, 573 (1984). This is what I would seek to do here.

This conclusion is bolstered by the fact that this case turned entirely on the credibility of the witnesses, rendering the loss of potentially exculpatory testimony particularly significant. 5 Moreover, the Commonwealth’s case was far from overwhelming. See Commonwealth v. Williams, 450 Mass. 894, 906 (2008) (potential for prejudice occasioned by government misconduct increased where prosecution’s evidence not overwhelming). Indeed, even without the defendant’s testimony, the jury acquitted him of one of the three crimes with which he was charged (assault and battery), and convicted him of a lesser included offense in connection with one of the other charges. These factors sharply increase the potential for prejudice here.

Consistent with the foregoing I would set aside the verdicts and remand this matter to District Court where an order should enter dismissing the charges against the defendant, with prejudice.

The disjunctive standard set out in Cinelli suggests the possibility, at least, *111 that criminal charges might be dismissed on the basis of sufficiently egregious official misconduct, even absent prejudice. Such a rule arguably would conflict with a number of related decisions. In Commonwealth v. Viverito, 422 Mass. 228, 230 (1996), for example, the court observed: “In several contexts similar to this one, we have stated that a defendant must show prejudice in order to justify dismissal of charges with prejudice.” In Commonwealth v. Imbruglia, 377 Mass. 682, 691 (1979), the court held that preindictment delay could support dismissal of charges only in cases of intentional delay that produced actual prejudice. The same test was deemed applicable to justify dismissal when the Commonwealth fails to afford an arrestee an initial appearance at the first opportunity. See Commonwealth v. Perito, 417 Mass. 674, 681-682 (1994). In a recent case, a showing of prejudice was required to support dismissal when police prevented an accused from obtaining an independent physical examination after an arrest for operating while under the influence. See Commonwealth v. Mason, 453 Mass. at 877-879 . See also Commonwealth v. Hampe, 419 Mass. 514, 515, 521-524 (1995). Ultimately, it is not necessary to consider this question here since I am of opinion that the defendant was, in fact, prejudiced by the government misconduct.

I do not consider the question whether the result would be any different here were proof of actual prejudice, as opposed to the “serious threat of prejudice,” required for dismissal.

As the defendant’s claim relates primarily to government coercion, the burden is on the Commonwealth to prove that any waiver was knowing and voluntary. See Commonwealth v. Freeman, 29 Mass. App. Ct. 635, 641 (1990).

NeedIess to say, the fact that the defendant did not testify, coupled with his contemporaneous claim that his decision was based on Donoffio’s intimidating conduct, provides strong evidence in support of the defendant’s claim. Contrast Commonwealth v. Hennessey, 23 Mass. App. Ct. 384, 387 (1987) (defendant gave no indication until long after trial that his right to testify had been denied).

As already noted, the defendant asserted at the motion hearing that in addition to relating his own version of the facts, he also would have impeached the testimony of Reananne.