Commonwealth v. Andrew Tyrone Hendren. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-476
COMMONWEALTH
vs.
ANDREW TYRONE HENDREN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Pursuant to a search warrant, Boston police officers
discovered numerous bags of crack cocaine on the defendant's
person. Based on this, the defendant was indicted for
trafficking in a class B substance. In an effort to prove that
the officer who signed the affidavit on which the search warrant
was obtained had lied, the defendant sought certain discovery.
The Commonwealth opposed such discovery on the ground that it
could lead to the defendant's uncovering the identity of a
confidential informant (CI) who had engaged in four "controlled
purchases" from the defendant. After the Commonwealth refused
to comply with an order to supply the requested discovery, a
Superior Court judge dismissed the indictment with prejudice.
On the Commonwealth's appeal, we affirm.
Background. The officer who signed the search warrant
affidavit, then an eleven year veteran of the Boston police
department (BPD), reported that the CI contacted him in "late
November 2018" and told him that a "white male" who went by the
name "Tristen" recently had offered to sell crack cocaine to the
CI. 1 According to the affidavit, using the telephone number the
CI identified as belonging to Tristen, the CI conducted four
controlled buys, two in November, one in the "first week of
December," and the final buy "within the past 72 hours" of
December 10, 2018. At each buy, the officers observed the man
the CI had identified as Tristen -- and later identified by
photograph as the defendant -- complete the transaction.
According to the affidavit, the defendant traveled to the
predetermined location of the first three controlled buys in a
black Honda Accord, which the officer confirmed through a
registry of motor vehicles search was registered to the
defendant. Based on this information, a search warrant was
issued for both the vehicle and the defendant. In executing the
warrant, on December 12, 2018, the officers found 223 bags of
what was tested to be crack cocaine on the defendant's person.
No drugs were otherwise found in the vehicle itself. The
1 According to the affidavit, the CI had "extensive knowledge of
drug distribution, sales, and delivery in the Boston, MA area"
from "being a substance abuser who regularly purchases illicit
drugs."
2
charges against the defendant involve only the substances seized
on his person, and not any of the substances recovered during
the controlled buys.
According to an affidavit that the defendant submitted from
his counsel, the defendant's car could not have been involved in
at least the first two controlled buys because it was in an auto
repair shop at the relevant time. 2 Whether this also could be
said about the third controlled buy is not clear, because the
search warrant affidavit suggests that that buy occurred at some
time on or after December 6, 2018, the very day that the
defendant claims his car was returned to him. In order to
determine precisely whether or not the alleged third controlled
buy occurred before the car was returned, the defendant filed a
discovery motion seeking the date and time of that buy. See
Mass. R. Crim. P. 14 (a) (1) (A) (iii), as appearing in 442
Mass. 1518 (2004). According to the defendant, establishing
whether the police lied about the car's involvement in the third
controlled buy was relevant for two reasons: to support a
hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), and
to support impeachment of the affiant at trial.
2 Defense counsel averred that from "November 5, 2018 until
December 6, 2018," the defendant's vehicle was not in his
possession, but rather in an auto body repair shop, and that
defense counsel had supporting documentation to corroborate
this.
3
The Commonwealth filed an opposition to the motion seeking
discovery, arguing that the requested information was protected
by the so-called "informant privilege." The Commonwealth
maintained that divulging information about the exact time of
the third controlled buy could allow the defendant to identify
the CI, e.g., by seeing whom might have called him just before
the transaction. Furthermore, the Commonwealth claimed the
requested information was "immaterial" because the date and time
of the third controlled buy was "not relevant to any element of
the alleged crime."
At a nonevidentiary hearing on the motion, defense counsel
assured the judge that he was seeking only the "date and time"
and that he was "not trying to identify the CI." Counsel
offered that if the judge was concerned about the defendant
being able to determine the identity of the CI by this limited
information, defense counsel would withhold the details from his
client. He also offered to provide his documentation of the
vehicle's whereabouts between November 6 and December 6, that
is, the documentary evidence referenced in his affidavit.
However, after prompting from the judge, the Commonwealth
expressly confirmed that it was not challenging the validity of
the defendant's information that the car was in the shop, and
that for present purposes it was not seeking further proof of
4
this. 3 The judge allowed the defendant's motion,
but -- following up on defense counsel's suggestion -- he
prohibited defense counsel from "discuss[ing] this information
[that is, the specific date and time of the third controlled
buy] with the defendant."
Over two months later, the Commonwealth filed a motion for
reconsideration expressing "renewed concerns" about the safety
of the CI in this case. For the first time, the Commonwealth
suggested holding an in camera hearing for the judge to examine
the evidence on which the defendant was relying to assert his
car was in the shop during the relevant time. After a
nonevidentiary hearing, the same judge denied the Commonwealth's
motion on November 10, 2021. 4
The Commonwealth then petitioned the single justice of the
Supreme Judicial Court, seeking extraordinary relief pursuant to
3 The Commonwealth's challenge to the validity of defense
counsel's affidavit, which was raised for the first time in its
untimely motion for reconsideration, has been waived. See
Commonwealth v. Teixeira-Furtado, 474 Mass. 1009, 1012 n.3
(2016). For the same reasons, so too has the Commonwealth
waived a request for an in camera hearing on the supporting
documentation. Furthermore, while the judge could have
conducted an in camera review sua sponte, he was not required to
do so. See Commonwealth v. Dias, 451 Mass. 463, 472 (2008).
4 The BPD separately filed what purported to be its own motion
for reconsideration over a month after the Commonwealth filed
its motion. Even though this "motion" was filed by a nonparty,
the docket notes that the judge denied it the same day he denied
the Commonwealth's motion. The BPD has not purported to appeal.
5
G. L. c. 211, § 3, to vacate the discovery order. The defendant
filed a written opposition. On February 17, 2022, the single
justice denied the Commonwealth's petition in a one-page order.
The Commonwealth did not seek review of that judgment by the full
court. 5
On April 5, 2022, the Commonwealth filed a response to the
pending discovery order informing the judge and the defendant
that BPD was unwilling to provide the ordered discovery even to
the Commonwealth itself. Accordingly, the defendant filed a
motion to dismiss the indictment due to the Commonwealth's
"willful and deliberate refusal to provide court ordered
discovery." 6
After a hearing at which the prosecutor confirmed the
ordered discovery would not be forthcoming, the judge allowed
the defendant's motion to dismiss with prejudice. He
5 The defendant argues that the Commonwealth forfeited its right
to contest the validity of the discovery order in the current
appeal by not seeking further review of the single justice's
denial of its petition for emergency relief. We disagree. See
Commonwealth v. Douzanis, 384 Mass. 434, 436 n.5 (1981).
6 Defense counsel filed a supporting affidavit explaining how he
had spoken to the Commonwealth "numerous times" following the
single justice's order, that the Commonwealth had informed him
that "they would not comply with [the discovery] order," that he
was "informed that the Boston Police Department would not
provide this information to the Suffolk County District
Attorney's Office," and that the "Commonwealth made the same
representations at a status hearing on April 5, 2022." A
transcript of this April 5, 2022 hearing is not in the record.
6
acknowledged "[BPD's] understandable motivations in refusing to
disclose the requested information to prosecutors (protecting
the safety and identity of its Confidential Informants)," but
nevertheless found "egregious" conduct on the part of the
Commonwealth in "refusing to produce the ordered discovery,"
which was "necessary in order for [the defendant] to receive a
fair trial and to be able to fully litigate a Franks motion."
Furthermore, the judge noted that he had "specifically
considered whether exclusion or suppression of the evidence
seized as a result of the execution of the search warrants would
be the more appropriate remedy," but concluded that either of
these "remed[ies] would ultimately likely lead to the same
practical result (dismissal of the indictment)."
Discussion. "There is no question that a judge may in his
discretion order discovery of information necessary to the
defense of a criminal case, and that, on failure of the
Commonwealth to comply with a lawful discovery order, the judge
may impose appropriate sanctions, which may include dismissal of
the criminal charge" (citation omitted). Commonwealth v.
Douzanis, 384 Mass. 434, 436 (1981). The Commonwealth
challenges the judge's allowance of the disclosure motion
underlying the allowance of the motion to dismiss, arguing that
the disclosure order impermissibly would in effect reveal the
identity of the CI. Although "[t]he government's privilege not
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to disclose the identity of an informant has long been
recognized in this Commonwealth . . . [t]he scope of the
informant privilege is limited by its underlying purpose:
'where the disclosure of the contents of a communication will
not tend to reveal the identity of an informer, the contents are
not privileged.'" Commonwealth v. Whitfield, 492 Mass. 61, 68
(2023), quoting Roviaro v. United States, 353 U.S. 53, 60
(1957). As the Supreme Judicial Court recently stated,
"consideration of whether disclosure of requested information,
short of an informant's name and address, might place an
informant in danger has always been part of a case-specific
inquiry into whether the informant privilege is properly
invoked." Whitfield, supra at 70 n.11. "We review a decision
on a motion for disclosure of information subject to the
Commonwealth's assertion of the informant's privilege for an
abuse of discretion." Id. at 67.
In our view, the judge did not abuse his discretion in
ordering the Commonwealth to provide defense counsel with the
limited information regarding the date and time of the third
controlled buy, which had occurred almost three years earlier.
Putting aside whether the defendant would have been able to
identify the CI from this information, the judge made disclosure
of such information subject to a protective order that
prohibited counsel from sharing such information with the
8
client. The Commonwealth has provided no reason to believe
defense counsel would not abide by that limitation. See
Commonwealth v. Rodriguez, 484 Mass. 1047, 1050 (2020)
(protective order is valid method to protect CI's identity when
seeking information other than CI's name); Commonwealth v.
Holliday, 450 Mass. 794, 803-806, cert. denied, 555 U.S. 947(2008) (assuming that defense attorneys uphold duty to comply
with court rules and orders, including protective orders under
rule 14 [a] [6]).
The Commonwealth protests that the defendant had a facially
strong Franks argument even without the requested information,
and that the defendant's need for the information therefore was
limited. While the premise of this contention may be correct,
it hardly follows that the defendant thereby lost the right to
make his Franks argument even stronger. We similarly are
unpersuaded by the Commonwealth's argument that because the
defendant was not being prosecuted for drugs sold during the
third controlled buy (or for any drugs found in the car during
execution of the search warrant), then any misstatement in the
search warrant affidavit about the use of the car during the
third controlled buy would therefore be immaterial in any trial
on the merits. Whether the affiant lied about such information
has its own potential exculpatory value regardless. As set out
in the margin, see note 3, supra, and to the extent that the
9
Commonwealth argues that, as a matter of proof, the defendant
adequately failed to substantiate that his car was in the shop,
the Commonwealth affirmatively disavowed making that argument
and therefore waived it. See Commonwealth v. Teixeira-Furtado,
474 Mass. 1009, 1012 n.3 (2016). For the same reasons, the
Commonwealth waived its late-minted request that the judge hold
an in camera hearing. Although the judge could have conducted
an in camera review sua sponte, he was not required to do so.
See Commonwealth v. Dias, 451 Mass. 463, 472 (2008).
This case bears little resemblance to Whitfield, the case
the Commonwealth highlighted at oral argument. There, the court
found that the "extensive amount of information requested by the
defendant," including the dates, locations, and other
information regarding the CI's previous law enforcement
collaborations, would "in effect, reveal the informant's
identity such that the informant's privilege is applicable to
this case." Whitfield, 492 Mass. at 70. Here, by contrast, the
defendant is seeking only the date and time of a single
controlled buy that had occurred years earlier. Moreover, there
was no protective order in Whitfield, unlike here. The judge
did not abuse his "broad discretion to order discovery
10
under Mass. R. Crim. P. 14" of this limited information.
Whitfield, supra at 70. 7
Having concluded that the discovery order issued by the
judge was valid, we still must assess whether the judge abused
his discretion in imposing the sanction of dismissal for the
Commonwealth's refusal to comply with that order. Although a
"dismissal with prejudice is a remedy of last resort[,]" such a
remedy "is warranted where there is egregious prosecutorial or
police misconduct and prejudice to the defendant's right to a
fair trial, and where the dismissal is necessary to cure the
prejudice." Commonwealth v. Edwards, 491 Mass. 1, 9 (2022),
quoting Commonwealth v. Washington W., 462 Mass. 204, 215
(2012). Our review of the sanction imposed is itself limited to
an abuse of discretion standard. See Washington W., supra at
213 ("We accept the judge's subsidiary findings of fact absent
clear error and review [his] sanctions order for abuse of
discretion or other error of law").
Where the BPD made it plain that it had no intention of
providing the requested information even to the district
attorney, the judge was justified in finding that the
Commonwealth's "repeated[] and wilfull[] fail[ure] to comply
7 We therefore do not analyze the other parts of the two-stage
analysis for when the informant privilege is properly asserted.
See Whitfield, 492 Mass. at 70.
11
with the discovery order" constituted egregious conduct.
Washington W., 462 Mass. at 216. See id. at 207, 213 (where
"prosecutor informed the judge that he had the required
discovery with him, but refused to produce it," judge found
"deliberate, willful and repetitive" misconduct [quotation
omitted]). It additionally bears noting that the information
that the BPD refused to disclose relates directly to the
defendant's allegations of police misconduct. Under the
circumstances present here, the judge had an ample factual basis
for concluding that the defendant would be unable to receive a
fair trial or full opportunity to litigate the Franks hearing.
See Washington W., supra at 216-217 (where prosecution refused
to produce statistical discovery such that the juvenile could
not fully develop factual basis for his selective prosecution
defense, "the only way to cure the denial of this lost
opportunity was to grant the juvenile the relief he potentially
could have obtained had he received the ordered discovery [i.e.,
dismissal with prejudice]"). This is not a case where there was
an obvious cure for the prejudice effected by the Commonwealth's
refusal to turn over potentially exculpatory information to
which the defendant was entitled. See, e.g., Edwards, 491 Mass.
at 9-10 (abuse of discretion to dismiss complaint with prejudice
where Commonwealth's discovery violation [failure to timely
disclose 209A exhibit] was not intentional but rather result of
12
miscommunication, and judge found it could have been remedied
through continuance or excluding exhibit at trial). At the
hearing on the motion to dismiss, the Commonwealth proposed no
lesser sanction to cure the prejudice to the defendant; instead,
it essentially urged the judge simply to ignore the
Commonwealth's noncompliance. The judge cannot be faulted for
failing to consider nonobvious alternatives that the
Commonwealth never brought to his attention. 8
Because the Commonwealth has not demonstrated that the
judge abused his discretion in issuing the discovery order or in
his choice of sanctions for the Commonwealth's deliberate
violation of that order, we affirm the judgment dismissing the
indictment with prejudice.
Judgment affirmed.
By the Court (Milkey, Blake &
Sacks, JJ. 9),
Clerk
Entered: October 24, 2023.
8 In particular, we note that the Commonwealth did not suggest
that the judge should have gone forward with the Franks hearing
to assess whether the car in fact was in the shop during the
first two controlled buys, and then, if so, have the judge then
presume that the car remained there for the third controlled buy
(as a means of trying to cure the prejudice caused by the
discovery violation).
9 The panelists are listed in order of seniority.
13