Commonwealth v. Pond

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SJC-13309
COMMONWEALTH vs. DAVID J. POND.
Suffolk. April 5, 2023. - July 31, 2023.
Present: Budd, C.J., Lowy, Cypher, Kafker, & Wendlandt, JJ.
Supreme Judicial Court, Superintendence of inferior courts.
Practice, Criminal, Discovery, Interlocutory appeal.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on July 1, 2022.
The case was considered by Gaziano, J.
Konstantin Tretyakov, Assistant District Attorney, for the
Commonwealth.
Christopher DeMayo for the defendant.
BUDD, C.J. The Commonwealth appeals from a judgment of a
single justice of this court denying its petition for relief
under G. L. c. 211, § 3, asking that the single justice reverse
an order from a judge in the Superior Court granting the
defendant limited access to the alleged victim's apartment in
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preparation for trial.1 Discerning no abuse of discretion or
error of law, we affirm the single justice's order denying the
Commonwealth's petition without reaching its merits.
Background. A grand jury returned several indictments
against the defendant on December 8, 2021, the most serious
charge being attempted murder in violation of G. L. c. 265,
§ 16, arising from allegations that the defendant, Daniel J.
Pond, strangled and beat the alleged victim in their shared
apartment in Watertown.2 At the defendant's arraignment on
January 21, 2022, the Commonwealth provided the defendant with
some preliminary discovery, which included twenty-six color
photographs of the alleged victim's apartment depicting the
front door, driveway, entryway, kitchen, and dining room. The
defendant subsequently filed a motion for access to the crime
scene, requesting that the judge order that defense counsel and
her investigator be granted access to the apartment to take
1 Although the Commonwealth commenced this action by filing
a petition in the county court, for convenience we refer to the
respondent as the "defendant."
2 The grand jury also returned indictments for strangulation
or suffocation, in violation of G. L. c. 265, § 15D (b); assault
and battery on a person age sixty or older, in violation of
G. L. c. 265, § 13K (a 1/2); threat to commit a crime (to kill),
in violation of G. L. c. 275, § 2; and assault and battery on a
person age sixty or older by means of a dangerous weapon (a
wall) causing serious bodily injury, in violation of G. L.
c. 265, § 15A (c) (i). The serious bodily injury portion of the
last charge was dismissed by agreement at a pretrial hearing.
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additional photographs and measurements inside, in order to
capture details the defendant asserted were exculpatory and
necessary to corroborate portions of his narrative contesting
the allegations.
A Superior Court judge heard from both parties at a
nonevidentiary hearing on May 19, 2022, and allowed the
defendant's motion, but restricted access to the apartment to
one hour with a police escort.3 The defendant's motion did not
identify specific rooms but simply requested access to "the
residence," which the judge allowed without limitation. In
granting the motion, the judge noted that "there is really
nothing that can substitute for the [d]efense [c]ounsel's eyes
on a crime scene," a point she reiterated when denying the
Commonwealth's subsequent motion for reconsideration on June 7.
On June 16, 2022, accompanied by a police escort and a
representative from the Watertown housing authority, defense
counsel and her investigator visited the apartment to complete a
walk-through of the crime scene. The alleged victim, however,
was present at the apartment and denied access to two bedrooms
and the bathroom. That same day, the defendant filed a second
motion, this time specifically requesting that the judge order
3 The Commonwealth represented to the motion judge that the
alleged victim opposed the defendant's request but did not wish
to be heard.
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access to the three rooms to which his attorney and investigator
were denied entry, asserting that those areas were relevant to
specific allegations of the defendant's prior bad acts. After
another nonevidentiary hearing on June 28, the same motion
judge, over the Commonwealth's opposition, granted the defendant
access to "all" rooms of the apartment and the home's curtilage,
again limited to one hour with a police escort. As with the
first motion, the Commonwealth represented to the motion judge
that the alleged victim was aware of the defendant's second
request and joined the Commonwealth's opposition but did not
wish to be heard. The judge stated that she appreciated and
regretted the "further intrusion" into the alleged victim's home
but noted that her intent in allowing the first motion had been
to permit access to the entire apartment, because the breadth of
the defendant's request -- and thus the scope of the motion
judge's order -- was "really no different than seeing the scene
of any other crime. So, if it happened on the street and the
[d]efendant was going there to inspect and photograph that area,
he would not be limited to that street. He would be able to see
the street that's parallel to it, the street that crosses it,
what else is in the area. This is essentially akin to that."
The Commonwealth then petitioned a single justice of this
court pursuant to G. L. c. 211, § 3, seeking reversal of the
motion judge's allowance of the second motion to inspect the
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apartment. The single justice denied the petition without
reaching the merits, and the Commonwealth appealed. The
Commonwealth filed a preliminary memorandum and appendix
pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001).4
Concluding that the Commonwealth demonstrated that it was
without alternative means to pursue appellate review, we
permitted the matter to proceed to full briefing and, in our
discretion, oral argument.
Discussion. In cases such as this, where the single
justice exercised his discretion to deny the petition without
reaching the merits, review by the full court is "strictly
limited" to a review of that precise ruling. Commonwealth v.
Samuels, 456 Mass. 1025, 1027 n.1 (2010). To accomplish this
narrow task, we consider whether the single justice abused his
discretion or made a clear error of law in concluding that "the
subject of the petition is not sufficiently important and
extraordinary" requiring the court's intervention. Commonwealth
v. Rodriguez, 484 Mass. 1047, 1049 (2020), quoting Commonwealth
v. Fontanez, 482 Mass. 22, 24 (2019).
4 Rule 2:21 applies "[w]hen a single justice denies relief
from a challenged interlocutory ruling in the trial court."
S.J.C. Rule 2:21 (1). Among other things, it requires the
appealing party to file a memorandum "set[ting] forth the
reasons why review of the trial court decision cannot adequately
be obtained on appeal from any final adverse judgment in the
trial court or by other available means." S.J.C. Rule 2:21 (2).
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The Commonwealth argues that the Superior Court judge
abused her discretion in permitting defense counsel to enter and
inspect the alleged victim's apartment a second time because the
access sought by the defendant was not relevant to the case, and
because the judge failed to consider properly the alleged
victim's privacy concerns. The Commonwealth contends that this
erroneous ruling raises systemic concerns, because the motion
judge created a "new categorical rule" in assessing the
defendant's request that will create a chilling effect on future
prosecutions and cause irreparable harm to individuals who are
victims of a crime in their home.
Although the privacy of alleged crime victims is an
important interest, the mere fact that an important interest is
implicated in a trial court ruling does not automatically give
rise to the type of exceptional circumstances warranting the
exercise of the court's extraordinary superintendence powers.
See Commonwealth v. Richardson, 454 Mass. 1005, 1006 (2009)
(interest in protecting jurors from unwarranted postconviction
risk to their safety, although important, did not give rise to
"exceptional circumstances" warranting exercise of
superintendence power). Here, the Commonwealth does not
articulate how the motion judge's discretionary ruling
permitting some additional discovery to the defendant in this
case amounts to an exceptional circumstance. Contrast Fontanez,
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482 Mass. at 26 (exceptional circumstances present where motion
judge's pretrial ruling "effectively foreclose[d] the
Commonwealth's ability to prosecute a serious crime"). And
although we offer no opinion on the merits of the Commonwealth's
petition, insomuch as the Commonwealth suggests that the motion
judge created a systemic risk by erring on the law, that claim
is likewise unsupported where the record reflects that the
motion judge applied the long-standing framework for evaluating
a defendant's request to inspect the crime scene, see
Commonwealth v. Matis, 446 Mass. 632, 635 (2006), as opposed to
fashioning a "new categorical rule."5 In sum, the Commonwealth
fails to demonstrate that this matter presents an exceptional
circumstance, as opposed to a singular grievance from "a
relatively routine trial court ruling." Richardson, supra. The
extraordinary powers vested in this court under G. L. c. 211,
§ 3, are not a means for "second guessing" a trial judge's
routine relevance determinations. Commonwealth v. Yelle, 390
Mass. 678, 687 (1984).
Conclusion. The Commonwealth's petition for interlocutory
relief presents no systemic or otherwise exceptional
circumstances warranting an exercise of this court's
5 To the contrary, it is the Commonwealth that proposes we
adopt a new rule governing requests for pretrial access to crime
scenes controlled by a third party. We decline to do so.
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extraordinary powers of superintendence under G. L. c. 211, § 3.
Accordingly, we discern no abuse of discretion or error of law
in the single justice's order denying the Commonwealth's
petition without reaching its merits.
Judgment affirmed.
CYPHER, J. (concurring). I agree with the court that the
single justice did not abuse his discretion or commit an error
of law in declining to reach the merits of the Commonwealth's
petition. Were I to examine the merits, however, I would rule
differently. I take this opportunity to recognize the
potentially unjust impact on victims in allowing a criminal
defendant's discovery request in these circumstances. Victims,
alleged or proven, generally have limited rights in a criminal
trial, as they are not parties. Whatever interests they do have
should be protected, as the Legislature has recognized their
interests by passing the victims' bill of rights. See G. L.
c. 258B. The Commonwealth has no other remedy, and this case
presents "a systemic issue that will have an effect not just on
the current case but on numerous other cases." Commonwealth v.
Fontanez, 482 Mass. 22, 26 (2019).
In its brief, the Commonwealth enunciated three reasons
exceptional circumstances demand extraordinary intervention:
(1) the motion judge's ruling "would allow defendants to inspect
the entirety of the residence of their victims, regardless of
necessity or even a showing of relevance to their case"; (2)
this ruling, and the judge's reasoning1 used to support it,
1 The motion judge reasoned:
2
"would have a chilling effect on crime victims who are
unfortunate [enough] to have had crimes committed upon them in
their residences"; and (3) if the ruling were allowed to stand,
"the Commonwealth would no longer be able to protect victims
from undue harassment." These concerns merit an examination of
the facts and the ruling.
The area the defendant seeks to inspect, with which the
Commonwealth takes issue on appeal (two bedrooms and a bathroom
in the victim's home), are not the locations where the charged
crimes are alleged to have occurred. Where the defendant seeks
discovery under Mass. R. Crim. P. 17 (a) (2), 378 Mass. 885(1979),
"the defendant must show (1) that the object (here, the
crime scene) is evidentiary and relevant, (2) that it is
not otherwise accessible in advance of trial by exercise of
due diligence, (3) that he cannot properly prepare for
"I understand that there are particular parts of the home
in which certain conduct is alleged to have happened.
However, this is part of trial preparation and seeing the
scene of this alleged crime is really no different than
seeing the scene of any other crime. So, if it happened on
the street and the [d]efendant was going there to inspect
and photograph that area, he would not be limited to that
street. He would be able to see the street that's parallel
to it, the street that crosses it, what else is in the
area. This is essentially akin to that."
The motion judge is incorrect that allowing the defense to
examine the private areas of a victim's home is "no different"
from examining the areas surrounding a street where a crime
occurred. "In view of the 'sanctity of the home,' 'all details
[in the home] are intimate details . . .'" (emphasis in
original). Commonwealth v. Porter P., 456 Mass. 254, 260
(2010), quoting Kyllo v. United States, 533 U.S. 27, 37 (2001).
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trial without access, and the failure to obtain advance
access may tend unreasonably to delay the trial, and (4)
that the motion is made in good faith and is not intended
as a general 'fishing expedition.'"
Commonwealth v. Matis, 446 Mass. 632, 635 (2006), quoting
Commonwealth v. Lampron, 441 Mass. 265, 269 (2004). Because the
evidence sought in the defendant's second motion, access to two
bedrooms and a bathroom, is not evidentiary and relevant, the
defendant fails to meet the first prong to obtain such evidence.
The allegations surround an argument between the defendant
and the victim that ensued in the kitchen of their formerly
shared home, during which the defendant pulled the victim's hair
and struck her head against a wall. According to the
Commonwealth's opposition to the defendant's second motion, when
the victim then attempted to run out of the home, the defendant
dragged her back to the kitchen and strangled her, threatened to
kill her, and again struck her head against the wall. During
this beating, the victim urinated on herself and was able to
"play[] dead" until the defendant walked away. The victim then
ran out of her home and drove to a police station, where police
observed injuries and bloodstains on the victim.2
In his second motion, the defendant requested access to the
three rooms, alleging that the defendant's "narrative of what
2 They also observed bloodstains on the defendant's right
hand and his shirt, and he admitted to arguing with the victim.
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happened is different from the alleged victim." He also stated
in his request that "[t]he narratives [of the victim] include
allegations that [the defendant] literally 'pulled her off the
toilet' in the bathroom and [that the victim] was abused by [the
defendant] in her bedroom." This does not support the request,
however, as these allegations regarded abuse "at some point in
the past," not in the presently charged conduct. The
Commonwealth specifically has stated that it does not intend to
introduce these prior bad acts at trial.3
The defendant did not suggest that he intended to introduce
his prior alleged abuse of the victim. Assuming that the
defendant would not introduce evidence of his alleged past abuse
of the victim, the examination of these three rooms is not
3 Defense counsel admitted as much at each motion hearing.
At the first motion hearing, defense counsel stated that she
needed "access to the kitchen, the pantry, the hallways, the
doorways, the driveway. . . . I need to take a look at his
room, but I don't really need to go into it." Counsel stated,
"[J]ust to be clear, I need access to the kitchen, hallway,
pan-, the kitchen area, hallways, dining room, living room, all
the doorways, I need to look at the doors, and the doorways,
front, back, and all the doorways, and the driveway." Despite
indicating at the first motion hearing that she did not need to
enter the bedroom, in the second motion, defense counsel
requested that she be permitted to "take pictures and
measurements" of the bedrooms and bathroom. At the second
motion hearing, defense counsel argued that "while nothing that
happened on [the date of the charged offenses] occurred in those
rooms, this is part of [the victim's] story. She . . . has
asserted that [the defendant] was abusive throughout their
relationship and she has specific instances that she uses to
document, or explain, or describe the abuse. And . . . those
events occurred in these rooms."
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relevant to his charged conduct or any issues that may arise
during his trial. The judge's order allows a defendant the
right to inspect a victim's entire home on any occasion that a
crime is committed against the victim in part of his or her
home. Contrast Matis, 446 Mass. at 635 (interior of home and
positions and acoustics of relevant rooms "bear directly on
whether the crime could have occurred without anyone present in
the house at the time being aware of the acts alleged").
The privacy interests of the victim should be considered
when ruling on a motion to inspect the victim's home. See State
in the Interest of A.B., 219 N.J. 542, 560 (2014) (in exercising
discretion whether to allow defendant to inspect victim's home
as crime scene, "a court must weigh the accused's need for a
particular species of discovery against the impact the discovery
request may have on the privacy and lives of . . . alleged
victims"). Defendants should not be permitted to use discovery
as a method of inflicting further abuse on a victim,
particularly in the victim's own home. "[V]ictims have a right
'[t]o be free from intimidation, harassment, or abuse.' . . .
Any discovery request that has as its objective causing
intimidation, harassment, or abuse of an alleged victim is
wholly illegitimate and must be denied." Id. at 562.
Our Legislature has recognized the importance of protecting
the interests of victims in criminal prosecutions. General Laws
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c. 258B was enacted in 1983 to give crime victims certain
rights. Del Gallo v. District Attorney for the Suffolk Dist.,
488 Mass. 1008, 1009 (2021). One of those rights is "to be
provided with information by the prosecutor as to the level of
protection available and to receive protection from the local
law enforcement agencies from harm and threats of harm arising
out of their cooperation with law enforcement and prosecution
efforts." G. L. c. 258B, § 3 (d). Particularly in the area of
domestic violence, this Commonwealth has a public policy and
numerous statutes focusing on "[p]reservation of the fundamental
human right to be protected from the devastating impact of
family violence." Vittone v. Clairmont, 64 Mass. App. Ct. 479,
484 (2005), quoting Mitchell v. Mitchell, 62 Mass. App. Ct. 769,
772-773 (2005). See Champagne v. Champagne, 429 Mass. 324, 327
(1999).
Not only is it the job of a prosecutor and law enforcement
to protect a victim from adverse consequences stemming from his
or her participation in a criminal prosecution, but "[j]udges,
as well, have a role to play in assuring that victims are
afforded their rights under [G. L. c. 258B]." Del Gallo, 488
Mass. at 1009. The allowance of a motion by the defendant to
inspect the most intimate areas of a victim's home, where those
areas are not relevant to the charged conduct or issues to be
presented at trial, is an injustice that demands some
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acknowledgement. Contrast State in the Interest of A.B., 219
N.J. at 562 ("when the defense has made a legitimate request to
inspect a crime scene that is an alleged victim's home and has
articulated a reasonable basis to believe the inspection will
lead to relevant evidence on a material issue, then, subject to
appropriate time, place, and manner restrictions intended to
protect the privacy interests of the alleged victim . . . , the
discovery should be granted"). I write out of concern for the
many crime victims who may be retraumatized as the result of
such an order, particularly one that lacks adequate foundation
in the law.