Commonwealth v. Teixeira / Commonwealth v. Meade , 475 Mass. 482 ( 2016 )


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    SJC-11929
    SJC-11944
    COMMONWEALTH   vs.   ANGELO TEIXEIRA.
    COMMONWEALTH    vs.   CHRISTOPHER A. MEADE.
    Suffolk.       January 11, 2016. - September 16, 2016.
    Present:     Gants, C.J., Cordy, Botsford, Duffly, Lenk, & Hines,
    JJ.1
    Boston Municipal Court. District Court, Probable cause hearing.
    Practice, Criminal, Probable cause hearing, Discovery.
    Moot Question.
    Civil action commenced in the Supreme Judicial Court for
    the county of Suffolk on July 2, 2015.
    The case was reported by Lenk, J.
    Civil action commenced in the Supreme Judicial Court for
    the county of Suffolk on August 10, 2015.
    The case was heard by Spina, J.
    Valerie A. DePalma (Jeffrey M. Miller with her) for the
    defendants.
    Kathryn Leary, Assistant District Attorney, for the
    Commonwealth.
    1
    Justices Cordy and Duffly participated in the deliberation
    on this case prior to their retirements.
    2
    John D. Donovan, Jr., Jesse M. Boodoo, Joshua D. Rovenger,
    & David M. Coriell, for Massachusetts Association of Criminal
    Defense Lawyers, amicus curiae, submitted a brief.
    Benjamin H. Keehn, Committee for Public Counsel Services,
    for Committee for Public Counsel Services, amicus curiae,
    submitted a brief.
    LENK, J.    These cases stem from two unrelated, nonfatal
    shootings in the Roxbury section of Boston in June, 2015, and
    July, 2015.     Angelo Teixeira was arrested for the first
    shooting, and Christopher Meade for the second.     Meade and
    Teixeira each were charged by complaint in the Boston Municipal
    Court (BMC) with a number of felonies, including some that are
    outside the final jurisdiction of that court.     Pursuant to G. L.
    c. 276, § 38, probable cause hearings were scheduled for each
    defendant to determine whether there was sufficient evidence to
    bind them over to the Superior Court for trial.     The
    Commonwealth was ordered to provide the defendants with
    discovery in advance of those hearings.     Noting that judges of
    the BMC and the District Court Department2 are not explicitly
    authorized, either by statute or by the Massachusetts Rules of
    Criminal Procedure, to order discovery in preparation for
    probable cause hearings (prehearing discovery), the Commonwealth
    2
    While the discussion concerns judges of the Boston
    Municipal Court (BMC), our analysis and conclusion apply equally
    to judges of the District Court. See Victor V. v. Commonwealth,
    
    423 Mass. 793
    , 796 (1996).
    3
    objected to the discovery orders and filed interlocutory
    appeals.
    In considering these cases, we must determine whether
    judges of the BMC may order prehearing discovery in the absence
    of specific authorization from G. L. c. 276, § 38, the Rules of
    Criminal Procedure, or any trial court standing order.3      We
    conclude that, because such judges have inherent authority to
    issue orders essential to their capacity to decide cases, they
    may, in their discretion, order prehearing discovery.       We
    conclude also that, here, the judges did not abuse their
    discretion by issuing these discovery orders, which were limited
    in scope and which would have allowed defense counsel reasonably
    to prepare for the scheduled probable cause hearings.4
    1.    Background.   a.   Teixeira.   On June 20, 2015, Boston
    police officers were dispatched to the scene of a shooting in
    Roxbury.    There, they encountered Teixeira, who had been shot in
    3
    We acknowledge the amicus briefs submitted by the
    Committee for Public Counsel Services in both cases, and the
    Massachusetts Association of Criminal Defense Lawyers in
    Teixeira's case.
    4
    Because we affirm the discovery orders on the basis of the
    judge's discretionary powers, we do not reach the defendants'
    contention that prehearing discovery is necessary as a matter of
    constitutional due process. Cf. Myers v. Commonwealth, 
    363 Mass. 843
    , 854 (1973) (having disposed of case on statutory
    grounds, court declined to decide whether "due process
    requirements of the United States Constitution mandate that the
    defendant in a probable cause hearing shall have the right to
    cross-examine prosecution witnesses and present testimony in his
    own defence").
    4
    the leg and soon thereafter was transported to a hospital.     The
    officers interviewed three witnesses, including an off-duty
    police officer from another jurisdiction, who said that they
    heard gunshots and that, subsequently, someone matching
    Teixeira's description had fired several shots at "unknown
    persons."   Police obtained surveillance footage from a store
    near the scene, which showed two individuals -- one of whom is
    apparently believed to be Teixeira -- "remov[ing] items from the
    store," "flee[ing]" down the street, and "plac[ing] a white
    garbage bag in the rear of [a nearby] yard."5   Police recovered
    two firearms from the garbage bag.
    On June 24, 2015, a complaint issued in the BMC, charging
    Teixeira with four crimes within the final jurisdiction of that
    court:   carrying a firearm without a license, G. L. c. 269,
    § 10 (a); carrying a loaded firearm without a license, G. L.
    c. 269, § 10 (n); possession of ammunition without a firearm
    identification (FID) card as a subsequent offense, G. L. c. 269,
    § 10 (h) (1); and assault and battery by means of a dangerous
    weapon, G. L. c. 265, § 15A (b) (three counts).   The complaint
    also charged him with two crimes -- carrying a firearm without a
    license as a second offense, G. L. c. 269, § 10 (a), (d); and
    committing a firearms violation having been convicted of three
    5
    Police reports do not reflect whether the episode recorded
    by the surveillance camera occurred before or after the
    shooting.
    5
    violent crimes or three serious drug offenses, G. L. c. 269,
    § 10G (c) -- for which final jurisdiction lies only in the
    Superior Court.6
    Teixeira was arrested and arraigned the same day.     At
    arraignment, the judge scheduled a probable cause hearing for
    July 7, 2015.    Over the Commonwealth's objection, the judge
    granted Teixeira's motion for discovery in advance of that
    hearing.    He ordered that the names and contact information of
    the Commonwealth's three witnesses be turned over by the close
    of business the following day, and that the surveillance footage
    be turned over the following week, four days before the hearing.
    The judge also issued a protective order "direct[ing defense
    counsel] not to provide to [Teixeira] any contact information on
    any witness."    The protective order was later expanded to
    prevent Teixeira from learning the names of the civilian
    witnesses.
    The following day, June 25, 2015, the Commonwealth filed a
    motion for reconsideration with respect to the discovery orders.
    A hearing on the Commonwealth's motion was scheduled for June
    26, 2105.    At that hearing, the Commonwealth's motion was
    6
    During arraignment on these charges, which took place in
    the BMC on June 24, 2015, Teixeira made threatening gestures and
    statements to Boston police detectives. This resulted in
    additional charges of witness intimidation, G. L. c. 268, § 13B,
    and threatening to commit a crime, G. L. c. 275, § 2, both of
    which are within the BMC's final jurisdiction.
    6
    denied, and the judge ordered that the witness information be
    turned over by the close of business.    The judge did, however,
    allow the Commonwealth's motion to continue the probable cause
    hearing for approximately one month.
    Later that day, the Commonwealth filed a notice of appeal
    with respect to the discovery order, a motion to stay the order
    pending appeal, and a request for a written ruling.    The judge
    stayed the discovery order until the close of business on June
    30, 2015.    The judge also issued a written ruling, explaining
    that he had ordered discovery because
    "[a]ffording such minimal discovery as the identities of
    witnesses and an opportunity to view video footage of the
    alleged incident in advance of the probable cause hearing
    is essential to the defendant's ability meaningfully to
    exercise his rights to confrontation and to present
    evidence at that hearing. . . . For example, one of the
    witnesses might describe the alleged shooter differently
    from the way that the defendant is described in the police
    report or from other witness accounts. Without the
    witnesses' identities being disclosed to defense counsel in
    advance of the hearing, such discrepancies, which might
    raise genuine issues with respect to probable cause, could
    not be explored . . . ."
    On June 30, 2015, the Commonwealth filed a motion to
    further stay the discovery order.    The judge denied the motion,
    and the stay expired, by its own terms, at the close of business
    that day.    The Commonwealth did not provide the ordered
    discovery.
    The next day, July 1, 2015, Teixeira filed a motion seeking
    sanctions.    At a hearing later that day, the judge asked the
    7
    Commonwealth to address why "[nineteen] and a half hours after
    that stay expired . . . there's been no compliance."    He noted,
    "[M]y order is in effect . . . [A]s far as I know, it
    hasn't been stayed, and I'm starting to get a little
    impatient, because I feel like I'm trying to do things
    procedurally in a way that respects the law and procedure.
    And I'm starting to feel like not everybody is adhering to
    the same rules."
    The judge did not then issue a ruling on sanctions.    Rather, he
    allowed the Commonwealth's request for seven days in which to
    respond to the defendant's motion for sanctions.
    On July 2, 2015, the Commonwealth filed an emergency
    petition in the county court, seeking an immediate stay of
    execution of the discovery order, and also seeking to vacate
    that order.   The motion for a stay was allowed on July 7, 2015,
    and a single justice thereafter reserved and reported the
    Commonwealth's petition to the full court.
    On July 30, 2015, a Suffolk County grand jury returned
    eleven indictments against Teixeira.7   On August 26, 2015, the
    7
    Teixeira was charged with four counts of attempted assault
    and battery by means of a firearm, G. L. c. 265, § 15F; one
    count of carrying a firearm without a license as a second
    offense, G. L. c. 269, § 10 (a) and (d), and after having been
    convicted of three violent crimes or three serious drug
    offenses, G. L. c. 269, § 10G (c); two counts of possessing
    ammunition without a firearm identification card, G. L. c. 269,
    § 10 (h), and after having been convicted of three violent
    crimes or three serious drug offenses, G. L. c. 269, § 10G (c);
    one count of carrying a loaded firearm, G. L. c. 269, § 10 (n);
    one count of receiving a firearm with a defaced serial number,
    G. L. c. 269, § 11C; and two counts of witness intimidation,
    G. L. c. 268, § 13B.
    8
    defendant was arraigned in the Superior Court and was provided
    with the discovery he had been seeking from the BMC.
    b.   Meade.   Shortly after midnight on July 5, 2015, a
    "black male" wearing a red sweatshirt approached a sedan parked
    on a street in the Roxbury section of Boston, and fired
    approximately three shots into the vehicle.    Four people,
    including the driver, were inside; two passengers were hit.     The
    driver drove away from the scene, pulled up next to a nearby
    police cruiser, and sought help.    The two victims were taken to
    a hospital.   Police interviewed the driver and one of the
    passengers,8 and obtained a surveillance video recording of the
    shooting.
    On July 8, 2015, police showed a photographic array, which
    did not contain a photograph of Meade, to the driver and one of
    the passengers.    Neither could identify any of the pictured
    individuals as the shooter.    On July 10, 2015, Meade was
    arrested and held in custody on an unrelated charge.    On July
    11, 2015, police presented another photographic array to the
    driver and to the passenger,9 this time containing a photograph
    of Meade.   Both separately identified Meade as the shooter.
    8
    Because the copy of the relevant police report in the
    record is redacted, it is not clear whether the passenger
    interviewed was one of the victims.
    9
    It is not clear whether this was the same passenger to
    whom police had shown the first photograph array.
    9
    Two days later, a ten-count complaint issued against Meade
    in the BMC.   Three of the counts –- carrying a firearm without a
    license, G. L. c. 269, § 10 (a); carrying a loaded firearm
    without a license, G. L. c. 269, § 10 (n); and possessing
    ammunition without an FID card, G. L. c. 269, § 10 (h) (1) --
    were within the final jurisdiction of that court.    The other
    seven were not.10   Meade was arraigned the same day.
    At arraignment, a probable cause hearing was scheduled for
    August 12, 2015.    In advance of that hearing, Meade sought
    discovery of the photographic arrays, several police reports,
    and contact information for witnesses mentioned in the reports.
    Over the Commonwealth's objection, the judge allowed Meade's
    motion for discovery, ordering that the discovery "be disclosed
    and turned over by" August 10, 2015, two days before the
    hearing.   The judge stated that Meade's "ability to defend
    himself and assist his attorney in his defense [at the probable
    cause hearing] will be impacted severely if they're not allowed
    to obtain this discovery."    She also entered a protective order
    10
    The counts over which there was no final jurisdiction
    were four counts of armed assault with intent to murder, G. L.
    c. 265, § 18 (b); carrying a firearm without a license as a
    second offense, G. L. c. 269, § 10 (a), (d); committing a
    firearm violation having been convicted of three violent crimes
    or three serious drug offenses, G. L. c. 269, § 10G (c); and
    possessing a firearm while committing a felony, G. L. c. 265,
    § 18B.
    10
    allowing disclosure of the witnesses' contact information only
    to Meade's counsel.11
    On August 10, 2015, the day discovery was to be turned
    over, the Commonwealth filed a petition in the county court
    pursuant to G. L. c. 211, § 3, seeking relief from the discovery
    order, and also seeking a stay of that order.    A stay issued
    later that day, and, on August 14, 2015, the single justice
    vacated the order.   The defendant thereafter filed a notice of
    appeal.   On October 9, 2015, a Suffolk County grand jury
    returned eleven indictments against Meade.12    On November 16,
    2015, the Commonwealth provided Meade the discovery that he had
    sought in the BMC.
    2.   Discussion.   The Commonwealth contends that the two
    judges did not have authority to order discovery in advance of
    the probable cause hearings.   Teixeira maintains that the
    11
    On July 31, 2015, the defendant filed a second motion for
    discovery, seeking other evidence referenced in the police
    report. The court took no action on that motion.
    12
    Meade was indicted on four counts of armed assault with
    intent to murder, G. L. c. 265, § 18 (b); carrying a firearm
    without a license as a second offense, G. L. c. 269, § 10 (a)
    and (d), and after having been convicted of three violent crimes
    or three serious drug offenses, G. L. c. 269, § 10G (c);
    carrying a loaded firearm, G. L. c. 269, § 10 (n); assault and
    battery by means of a dangerous weapon, G. L. c. 265, § 15A; two
    counts of assault and battery by means of discharging a firearm,
    G. L. c. 265, § 15E; and two counts of attempted assault and
    battery by means of discharging a firearm, G. L. c. 265, § 15F.
    11
    Commonwealth should be sanctioned for its failure to comply with
    the discovery order in the BMC.
    a.    Mootness.   Because the defendants have been indicted
    and are no longer entitled to probable cause hearings, the
    discovery orders themselves are moot.    Mass. R. Crim. P. 3 (f),
    as appearing in 
    442 Mass. 1502
     (2004).    Commonwealth v. Perkins,
    
    464 Mass. 92
    , 95 (2013) (Perkins).    See Lataille v. District
    Court of E. Hampden, 
    366 Mass. 525
    , 531 (1974) (Lataille)
    ("return of an indictment is itself a determination of probable
    cause and renders unnecessary a preliminary hearing").
    "However, it is within the discretion of this court to answer
    questions that, due to circumstances, no longer may have direct
    significance to the parties but raise issues of public
    importance and, because of their nature, may be 'capable of
    repetition, yet evading review.'"    Perkins, supra, quoting
    Lockhart v. Attorney Gen., 
    390 Mass. 780
    , 782–783 (1984).
    The issue here -- whether a BMC judge may order discovery
    in anticipation of a probable cause hearing -- is one that
    "implicate[s] the . . . interests of all defendants who are so
    situated, and more generally [is] significant for the proper
    administration of the criminal justice system."    See Perkins,
    supra.   The issue also is likely to evade appellate review,
    since it becomes moot upon the return of an indictment, when a
    defendant loses his or her right to a probable cause hearing.
    12
    See Lataille, 
    supra.
         Moreover, "[w]e have been advised that the
    issue is occurring on a frequent basis in the trial courts and
    uncertainty exists whether an order similar to the one[s] in
    issue can be entered."     Commonwealth v. Durham, 
    446 Mass. 212
    ,
    217, cert. denied, 
    549 U.S. 855
     (2006).    We therefore consider
    the issue raised in these cases.
    b.   Discovery.   Defendants who are charged by complaint in
    the BMC, but whose cases will be finally adjudicated in the
    Superior Court, have a statutory right to a probable cause
    hearing, "unless an indictment has been returned for the same
    offense."13   Mass. R. Crim. P. 3 (f).   See Lataille, 
    supra
    ("indictment is itself a determination of probable cause and
    renders" hearing "unnecessary").     General Laws c. 276, § 38,
    provides that, "as soon as may be" after a complaint issues, a
    BMC judge
    "shall . . . examine on oath the complainant and the
    witnesses for the prosecution, in the presence of the
    defendant, relative to any material matter connected with
    such charge. After the testimony to support the
    prosecution, the witnesses for the prisoner, if any, shall
    be examined on oath, and he may be assisted by counsel in
    such examination and in the cross examination of the
    witnesses in support of the prosecution."
    13
    This right applies both to defendants whose charges are
    outside the final jurisdiction of the BMC, and those who are
    "charged . . . with an offense within the concurrent
    jurisdiction of the [BMC] and Superior Courts for which the
    [BMC] will not retain jurisdiction." Mass. R. Crim. P. 3 (f),
    as appearing in 
    442 Mass. 1502
     (2004).
    13
    Following this hearing, the judge assesses whether "there is
    probable cause to believe that the defendant committed the crime
    or crimes alleged in the complaint" and, on that basis, whether
    to "bind the defendant over to the Superior Court" for final
    adjudication of the charges.14   Mass. R. Crim. P. 3 (f).
    Neither the statute, the rules of criminal procedure, nor
    any trial court standing order provides for discovery in advance
    of the probable cause hearing.   The question we confront is
    whether a judge, in his or her discretion, nonetheless may order
    discovery to promote the parties' full participation in the
    hearing and, thereby, to assist in the assessment of probable
    cause.    See Myers v. Commonwealth, 
    363 Mass. 843
    , 851-852 (1973)
    ("primary function of the probable cause hearing of screening
    out 'an erroneous or improper prosecution,' . . . can only be
    effectuated by an adversary hearing where the defendant is given
    a meaningful opportunity to challenge the credibility of the
    prosecution's witnesses and to raise any affirmative defenses he
    14
    The probable cause standard used at such a hearing is
    more demanding than "probable cause to arrest." Myers v.
    Commonwealth, 
    363 Mass. 843
    , 849 (1973). The judge
    "view[s] the case as if it were a trial and he were
    required to rule on whether there is enough credible
    evidence to send the case to the jury. Thus, the
    magistrate should dismiss the complaint when, on the
    evidence presented, a trial court would be bound to acquit
    as a matter of law."
    
    Id. at 850
    .
    14
    may have" [citation omitted]).   For the reasons that follow, we
    conclude that, subject to certain limitations, a judge may order
    discovery to assist in this process.
    General Laws c. 276, § 38, is silent on the question
    whether a BMC judge may issue discovery orders, or any other
    orders, in anticipation of a probable cause hearing.   That such
    authority is not provided explicitly in the terms of the
    statute, however, does not mean that it does not exist.
    "[C]ourts have inherent power 'to do whatever may be done under
    the general principles of jurisprudence to insure to the citizen
    a fair [hearing], whenever his life, liberty, property or
    character is at stake'" (citation omitted).   Commonwealth v.
    Charles, 
    466 Mass. 63
    , 73 (2013).   We have noted, in this vein,
    that "the District Court [and the BMC] have the power to
    [issue] . . . orders which are reasonably designed to provide
    the means for intelligent consideration of probable cause"
    (citation omitted).   Commonwealth v. Hinterleitner, 
    391 Mass. 679
    , 683 (1984).   To the extent that a judge's order is "a
    legitimate exercise of [this] inherent power of the District
    Courts [or BMC], the lack of statutory authorization for that
    [order] is immaterial."   Brach v. Chief Justice of the Dist.
    Court Dep't, 
    386 Mass. 528
    , 535 (1982).
    A court's "[i]nherent powers" constitute, among other
    things, those "whose exercise is essential to . . . [the
    15
    court's] capacity to decide cases" (citation omitted).15    
    Id.
    This includes the authority "to facilitate . . . discovery."
    DaRosa v. New Bedford, 
    471 Mass. 446
    , 454 (2015), quoting
    Commonwealth v. Fremont Inv. & Loan, 
    459 Mass. 209
    , 214 (2011).
    See Cavanaugh v. McDonnell & Co., 
    357 Mass. 452
    , 454 (1970),
    quoting Owens-Illinois Glass Co. v. Bresnahan, 
    322 Mass. 629
    ,
    631 (1948) (power to order discovery "does not depend upon
    statute, but is a part of the general jurisdiction of a court of
    equity"); G. L. c. 218, § 19C ("district court and [BMC]
    departments of the trial court shall have the same equitable
    powers and jurisdiction as is provided for the superior court").
    Accordingly, to the extent discovery is "essential" to a judge's
    "capacity to decide" the question of probable cause, it is
    within his or her inherent powers to order it.   See Brach v.
    Chief Justice of the Dist. Court Dep't, supra at 535.
    We are persuaded that, in at least some instances, a judge
    reasonably could conclude that prehearing discovery is
    15
    As a general matter, a court's inherent powers are
    strongest with respect to matters of procedure. See Brach v.
    Chief Justice of the Dist. Court Dep't, 
    386 Mass. 528
    , 535
    (1982) ("All the inherent powers recognized by this court . . .
    have involved the internal functioning of the judiciary").
    See, e.g., Commonwealth v. Fremont Inv. & Loan, 
    459 Mass. 209
    ,
    213-214 (2011) (inherent authority "to issue protective
    orders"); Commonwealth v. Wilcox, 
    446 Mass. 61
    , 69 (2006)
    (inherent authority "to grant pretrial bail and [to] compel the
    presence of a defendant at trial"); George W. Prescott Publ. Co.
    v. Register of Probate for Norfolk County, 
    395 Mass. 274
    , 277
    (1985) (inherent authority "to impound . . . files" [citation
    omitted]).
    16
    "essential."   This is so because, at a hearing pursuant to G. L.
    c. 276, § 38, "complete cross-examination and the . . .
    present[ation of] affirmative defenses [a]re crucial and
    necessary to effectuate a true probable cause standard,"
    Lataille, 
    supra at 530
    ; these functions, in turn, often are
    facilitated by material obtained through discovery.   See, e.g.,
    Myers, 
    supra at 852
     (absent evidence obtained by defendant
    before hearing and used during cross-examination, "examining
    magistrate could not have possibly made an informed judgment").
    The Appeals Court reached a similar conclusion in
    Commonwealth v. Silva, 
    10 Mass. App. Ct. 784
    , 791 (1980).     In
    holding that a prosecutor may be sanctioned for disobeying an
    order to provide prehearing discovery, the court presumed that a
    District Court judge has inherent authority to issue such an
    order.   See id. at 790-791 ("In connection with that hearing, it
    is essential that the District Court have the power to enforce
    any of its orders which are reasonably designed to provide the
    means for intelligent consideration of probable cause . . .").
    Similarly, courts in other jurisdictions have held that a
    "court[] ha[s] the inherent power to order appropriate . . .
    discovery . . . ancillary to [its] statutory power to determine
    whether there is probable cause to hold the defendant to
    answer."   Holman v. Superior Court of Monterey County, 
    29 Cal. 3d 480
    , 485 (1981) (magistrates may order such discovery
    17
    notwithstanding that criminal charges are outside their final
    jurisdiction).     See State v. Laux, 
    167 N.H. 698
    , 704 (2015)
    ("circuit court has the inherent authority, within its sound
    discretion, to order discovery prior to the preliminary hearing"
    even where final adjudication will take place in superior
    court); State v. Easthope, 
    668 P.2d 528
    , 531 (Utah 1983) ("power
    to compel discovery is . . . inherent in the magistrate's power
    to conduct" probable cause hearing).    See also People v. Laws,
    
    218 Mich. App. 447
    , 451 (1996) ("district court may order
    discovery in carrying out its duty to conduct preliminary
    examinations" and may do so "before the preliminary
    examination").16
    This analysis notwithstanding, the Commonwealth contends
    that BMC judges have no authority to order prehearing discovery,
    and that, even if they have such authority, they ought not to
    exercise it.
    16
    But see People v. Quinn, 
    183 Colo. 245
    , 251 (1973)
    ("discovery should not be ordered prior to the preliminary
    hearing"); Janklow v. Talbott, 
    89 S.D. 179
    , 183 (1975) (same).
    The Commonwealth cites two other decisions from other
    jurisdictions that are claimed to reflect a similar conclusion.
    Those cases however, involved materially different issues from
    the question before this court. See State v. O'Brien, 
    349 Wis. 2d 667
    , 682 (2013), aff'd, 
    354 Wis. 2d 753
    , 850, cert. denied,
    
    135 S. Ct. 494
     (2014) (no constitutional right to prehearing
    discovery); Almada v. State, 
    994 P.2d 299
    , 303 (Wyo. 1999)
    (prehearing discovery proper in general, but improper where
    judge "ordered the State to permit discovery of material which
    did not pertain to probable cause").
    18
    The Commonwealth notes, first, that BMC judges may not
    depart from the rules of criminal procedure, which make no
    provision for discovery in advance of a probable cause hearing.
    See Carlisle v. United States, 
    517 U.S. 416
    , 426 (1996)
    ("Whatever the scope of [a court's] 'inherent power,' however,
    it does not include the power to develop rules that circumvent
    or conflict with the Federal Rules of Criminal Procedure").
    This silence, the Commonwealth argues, is significant because
    the rules anticipate other occasions when BMC judges may or must
    issue discovery orders.   See Mass. R. Crim. P. 11 (b), as
    appearing in 
    442 Mass. 1509
     (2004) (at pretrial hearing, courts
    "shall" consider discovery motions); Mass. R. Crim. P. 14, as
    amended, 
    444 Mass. 1501
     (2005) (requiring automatic pretrial
    discovery of certain materials); Dist./Mun. Cts. R. Crim. P. 3
    (where charges fall within court's final jurisdiction, judge
    "shall" issue order at arraignment "requir[ing] the parties to
    provide . . . discovery").   These occasions, in the
    Commonwealth's view, "occupy the field" and leave no room for
    the discretionary discovery at issue here.17
    17
    The Commonwealth also argues that, if the Legislature had
    intended to provide defendants with a prehearing right to
    discovery, it would have stated so explicitly, much as it has in
    other contexts. See, e.g., G. L. c. 231, §§ 61-69 (right to
    discovery in civil litigation). The question here, however, is
    whether a court has discretionary authority to order discovery,
    not whether the Legislature provided defendants with a right to
    such discovery.
    19
    The Commonwealth's contention is unavailing.    The fact that
    the procedural rules are silent about a court's authority to
    exercise one of its inherent powers does not imply that the
    rules envision the court being deprived of that power.   See
    Bradford v. Knights, 
    427 Mass. 748
    , 752 (1998) ("While the
    Massachusetts Rules of Criminal Procedure do not expressly
    permit a judge to rehear a matter, no policy prohibits
    reconsideration of an order or judgment in appropriate
    circumstances," and doing so is an "inherent power of a court"
    [citation omitted]).    See also Reporters' Notes (2004) to
    Rule 1, Mass. Ann. Laws Court Rules, Rules of Criminal
    Procedure, at 1343 (LexisNexis 2015) (rules are "general and
    flexible, prescribing only basic essentials").
    Nor are we persuaded that the rules of criminal procedure
    cited by the Commonwealth were intended to occupy the field with
    respect to discovery.    Those rules concern one specific issue:
    the mandatory pretrial discovery process.    See Mass. R. Crim.
    P. 13 (e), as appearing in 
    442 Mass. 1516
     (2004) (defendants
    have "right to a hearing" on motions for further discovery);
    Mass. R. Crim. P. 14 (requiring automatic discovery of certain
    materials); Dist./Mun. Cts. R. Crim. P. 3 (at arraignment, judge
    "shall" issue discovery order).    Even if these rules set forth
    the exclusive means through which mandatory pretrial discovery
    is to be conducted, they imply nothing about the availability or
    20
    lack of availability of the discretionary prehearing process at
    issue here.18
    As mentioned, the Commonwealth maintains also that, even if
    BMC judges have authority to order prehearing discovery, it
    would be unwise for them to exercise it.   The Commonwealth
    expresses concern that, because prehearing discovery might
    reveal the identities of the prosecution's witnesses, it will
    lead to witness tampering.19   Such tampering is asserted to be
    18
    Indeed, the Commonwealth concedes in its brief that, "in
    the course of a probable cause hearing, there may arise
    circumstances in which a judge may properly order a Commonwealth
    witness to disclose information that is central to the
    determination of probable cause." The rules of criminal
    procedure, however, contain no explicit provision concerning
    such an order.
    19
    The Commonwealth contends further that prehearing
    discovery will not provide defendants with significant practical
    benefits, as they can learn the essential aspects of the
    Commonwealth's case either at the hearing itself or when
    discovery is turned over upon the conclusion of a "prompt grand
    jury investigation." See Janklow v. Talbott, 89 S.D. at 181-
    182; Superior Court Standing Order 2-86 (discovery to be
    provided at arraignment).
    In practice, however, probable cause hearings, which are
    meant to be conducted "as soon as may be" after a defendant is
    charged, see G. L. c. 276, § 38, have largely become extinct.
    This has happened not, as the Commonwealth contends, because
    "prompt grand jury investigations" usually lead to the issuance
    of an indictment before the scheduled date of the probable cause
    hearing, but because the Commonwealth routinely is granted a
    series of continuances -- usually between three and four months
    in total length –- that postpone the hearing until an indictment
    issues and the hearing no longer is required. See Commonwealth
    v. Perkins, 
    464 Mass. 92
    , 108 (2013) (Gants, J., concurring) ("a
    probable cause hearing in a criminal case is virtually never
    conducted in the courts of Massachusetts; the only preliminary
    21
    particularly problematic during the early stages of an
    investigation, when witnesses might not yet have revealed the
    full extent of their knowledge to police or to a grand jury.
    See Commonwealth v. Tavares, 
    459 Mass. 289
    , 305 (2011) (Gants,
    J., concurring) (instances of "victims or witnesses refusing to
    cooperate or changing or recanting earlier testimony . . .
    occurred in up to ninety per cent of [Suffolk County district
    attorney's] cases involving guns, gangs, or serious violence").
    While we acknowledge the gravity of this concern, judges of
    the BMC have adequate means at their disposal to address it if
    the situation requires.   For example, when discovery is
    warranted, they may, as here, issue protective orders concerning
    a witness's identity or contact information, allowing it to be
    disclosed only to defense counsel.   See Mass. R. Crim. P. 14 (a)
    (6) ("judge may, for cause shown, grant discovery to a defendant
    on the condition that the material to be discovered be available
    only to counsel for the defendant").   See also Berend, Less
    Reliable Preliminary Hearings and Plea Bargains in Criminal
    Cases in California:   Discovery Before and After Proposition
    115, 
    48 Am. U. L. Rev. 465
    , 522 n.244 (1998) ("study . . .
    screening of a defendant's case is conducted by a grand jury,
    sometimes months after the initial appearance").20 Charges of
    witness intimidation, G. L. c. 268, § 13B, were pending against
    both defendants. In Meade's case, the Commonwealth gave as an
    additional reason that the shooting was an apparently "random
    act of violence" and that the victims and perpetrator did not
    know each other.
    22
    concluded that early and broad discovery in California not only
    encouraged more early guilty pleas, but had no impact on witness
    intimidation").    Where a protective order is insufficient,
    judges simply may deny the discovery request altogether.      Cf.
    Cronin v. Strayer, 
    392 Mass. 525
    , 534 (1984) (trial court judges
    are "in the best position to weigh fairly the competing needs
    and interests of parties affected by discovery" [citation
    omitted]).
    We turn now to the orders at issue here.    The parties
    recognize that, to the extent that BMC judges have authority to
    order prehearing discovery, there was no abuse of discretion in
    ordering it in these two cases.    In each, the central issue at
    the probable cause hearing was likely to be whether the
    defendants had been identified correctly by witnesses, and each
    defendant sought discovery of materials that would allow him to
    test this issue, such as police reports, photographic arrays,
    the identities of the witnesses, and surveillance video.       See
    Holman v. Superior Court of Monterey County, 
    29 Cal. 3d 480
    ,
    485-486 (1981) (judge properly ordered "limited discovery
    directed to the restricted purpose of the preliminary
    examination").    Without these materials, as the judge in
    Teixeira's case reasoned, "discrepancies [regarding
    identification], which might raise genuine issues with respect
    to probable cause, could not be explored" at such a hearing.
    23
    See 
    id. at 485
     (discovery proper if has been "show[n] that such
    discovery is reasonably necessary to prepare for the preliminary
    examination").   At the same time, recognizing the Commonwealth's
    particularized concerns regarding witness intimidation,20 the
    judges in both cases issued protective orders shielding the
    witnesses' contact information from the defendants, and the
    judge in Teixeira's case issued an order preventing the
    defendant from learning their names.   Given that the defendants
    demonstrated good cause for seeking discovery directed to the
    restricted purpose of the probable cause hearing, that the
    resulting orders were carefully circumscribed, and that they
    were accompanied by protective orders addressing the
    Commonwealth's particularized concerns, we discern no abuse of
    discretion.
    c.   Teixeira's motion for sanctions.   Teixeira asks that
    this court impose sanctions on the Commonwealth for failing to
    comply with the BMC judge's discovery order during the period
    before a stay was issued by the single justice.21   He seeks
    20
    Charges of witness intimidation, G. L. c. 268, § 13B,
    were pending against both defendants. In Meade's case, the
    Commonwealth gave as an additional reason that the shooting was
    an apparently "random act of violence" and that the victims and
    perpetrator did not know each other.
    21
    The discovery order was issued on June 24, 2015, took
    effect on June 30, 2015, and was stayed by a single justice of
    this court seven days later, on July 7, 2015.
    24
    dismissal of the indictments or, alternatively, imposition of
    another "appropriate sanction."
    The Commonwealth acted inappropriately by failing to comply
    with the judge's order.   Even if that order had been issued in
    error, the Commonwealth was not without its remedies.      It could
    have, as in Meade's case, sought an immediate stay from the
    single justice pursuant to G. L. c. 211, § 3.     Instead, it
    waited until eight days after the order issued -- and two days
    after it went into effect -- to seek such relief.    The
    Commonwealth may not fail to pursue a timely appeal and then
    disobey a judge's order when the opportunity for appeal is no
    longer available.   "Litigants may not resort to self-help
    remedies and unilaterally flout court decrees."     Commonwealth v.
    Carney, 
    458 Mass. 418
    , 433 n.20 (2010).   If a court issues a
    directive that a party believes to be unlawful, it "must be
    obeyed, and until it is reversed by orderly review, it is to be
    respected."   
    Id.,
     quoting Mohamad v. Kavlakian, 
    69 Mass. App. Ct. 261
    , 264 (2007).
    Nonetheless, we are constrained to conclude that dismissal
    would not be an appropriate sanction for the Commonwealth's
    conduct, as "we have never upheld the dismissal of a complaint
    or indictment for misconduct in the absence of a showing of
    prejudice."   Commonwealth v. Hernandez, 
    421 Mass. 272
    , 278
    (1995).   Teixeira has not attempted to make such a showing, nor
    25
    would he be able to do so.   See id. at 279-280 (before
    dismissing complaint, trial judge must determine that "the
    prosecutor's refusal to disclose [information following
    discovery order] 'caused such irreparable prejudice that the
    defendant could not receive a fair trial if the complaint were
    reinstated'" [citation omitted]).
    Whether some other sanction is appropriate we leave to the
    discretion of the Superior Court judge in whose jurisdiction
    this case now lies.    See id. at 280 & n.8 (while dismissal with
    prejudice not appropriate, case remanded for factual findings
    and determination whether "some other sanction" appropriate);
    Reporters' Notes (Revised, 2004) to Rule 14, Mass. Ann. Laws
    Court Rules, Rules of Criminal Procedure, at 1517 (rule
    regarding sanctions "is based on [the] assumption that the trial
    court is in the best situation to consider the opposing
    arguments concerning a failure to comply with a discovery order
    and to fashion an appropriate remedy").
    3.   Conclusion.    The orders requiring discovery in the
    Boston Municipal Court are affirmed.   In Teixeira's case, the
    matter is remanded to the Superior Court for consideration,
    after any hearings that the judge may deem appropriate, whether
    a sanction should be imposed on the Commonwealth for its refusal
    to obey the Boston Municipal Court judge's order and, if so, the
    nature of the sanction.
    26
    So ordered.