NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Prescott, 463 Mass. 258 (2012)

CONTRIBUTING EDITOR: BRETT BAUMAN I. Procedural History

Seeking relief from a Suffolk County District Court judge, William OConnell and the Commonwealth (collectively, petitioners) filed a petition pursuant to G.L. c. 211, 3 to reverse the judges order to release from impoundment a redacted version of a search warrant affidavit containing allegations of statutory rape against OConnell.1 The affidavit was impounded following the Commonwealths motion soon after police executed the warrant.2 George W. Prescott Publishing Company, LLC (Prescott), which was permitted to intervene in the district court criminal proceedings, sought review of the affidavit.3 Prescott argued that no good cause existed for impoundment of the affidavit and that it was presumptively public.4 Following several hearings, the District Court vacated its impoundment order but ordered that the complainants name and other identifying information remain redacted before the affidavit was made public.5 The petitioners filed the G.L. c. 211, 3 motion, arguing that the district court erred in vacating the impoundment, since the affidavit contained allegations and reports of rape, which are barred from disclosure pursuant to G.L. c. 41, 97D.6 They also argued that disclosure would unduly prejudice OConnell and violate his right to a fair trial under the Sixth Amendment to the United States Constitution.7 A single justice of the Supreme Judicial Court for Suffolk County reserved and reported the
1 2 3 4 5 6 7

Commonwealth v. George W. Prescott Pub. Co., LLC, 463 Mass. 258, 259 (2012). Id. Id. Id. Id. Id. Commonwealth v. Prescott, supra at 259.

75

76

New Eng. L. Rev. Mass. Crim. Dig.

v. 47 | 75

matter to the Supreme Judicial Court (SJC).8 II. Facts In March of 2011, following an investigation of OConnell involving allegations that OConnell had engaged in sexual intercourse with a minor, State Trooper Kathleen Prince obtained a warrant to search OConnells condominium in Quincy.9 Trooper Princes affidavit, in support of the warrant application, contained identifying information about the minor, including the minors name, and other statements regarding OConnells alleged conduct.10 On April 5, 2011, following the execution of the warrant and the return of service filed in the District Court, the Commonwealth moved to impound all the materials in connection with the warrant, such as the affidavit, application, and return of service.11 The Commonwealth argued that it was an ongoing investigation, it was public policy to protect the identity of child sexual assault victims, and the warrant materials should be impounded pursuant to G.L. c. 41, 97D.12 The motion was granted by the Clerk Magistrate of the Quincy District Court for six months until October 5, 2011.13 On April 27, 2011, Prescott, publisher of the Patriot Ledger newspaper, filed a civil complaint in the District Court against the Clerk Magistrate, the Norfolk County District Attorney, and OConnell.14 Prescott sought to terminate the impoundment of the materials.15 At the same time, Prescott filed an emergency motion to terminate the impoundment, relying on G.L. c. 276, 2B.16 Following a hearing, the District Court denied Prescotts motion and found that good cause existed to continue the impoundment of the materials.17 However, the judge stated that he would review the impoundment order on June 1, sua sponte, and the Commonwealth would bear the burden of re-applying for the impoundment.18 Two days later, a criminal complaint was filed against OConnell, charging him with aggravated statutory rape, engaging in sexual conduct

8 9

Id. Id. at 260. 10 Id. 11 Id. 12 Id. 13 Commonwealth v. Prescott, supra at 260. 14 Id. 15 Id. 16 Id. 17 Id. 18 Id.

2013

Commonwealth v. Prescott

77

for a fee, and trafficking in cocaine.19 The Commonwealth also filed a motion to impound the complaint, related documents, discovery materials, police reports, evidence, and any exhibits submitted to the court by the police or the Commonwealth.20 Prescott moved to intervene in the case, seeking the same relief as in the civil caseto terminate or modify the impoundment order.21 A hearing was held regarding Prescotts motion to intervene.22 The judge allowed the motion by agreement of the Commonwealth and Prescott, and proceeded to terminate Prescotts civil case.23 The judge indicated that he intended to terminate the impoundment of the narrative portion of the criminal complaint and the warrant affidavit with the complainants name and identifying information redacted.24 At two further hearings, the Commonwealth continued to argue that impoundment was warranted regarding the remaining materials, since the affidavit and search warrant materials contained a report of rape and sexual assaultinformation that is barred from public disclosure pursuant to G.L. c. 41, 97D.25 OConnell argued that there was good cause for continued impoundment and that disclosure would unfairly prejudice him in violation of his right to a fair trial under the Sixth Amendment to the United States Constitution.26 Prescott argued for lifting the order of impoundment but agreed that the complainants name and other identifying information should remain redacted from the affidavit.27 Following the hearing, the judge ordered the affidavit to be released from impoundment, stating that the Commonwealth failed to show good cause for continued impoundment and that G.L. c. 41, 97D did not bar disclosure of the affidavit.28 The judge stayed his order for one week to give the parties an opportunity to appeal to the county court.29 The petitioners filed a G.L. c. 211, 3 petition in the county court.30 The single justice extended the stay of the District Court judges order until further order of the county court.31 Following the hearing, the single justice

19 20 21 22 23 24 25 26 27 28 29 30 31

Commonwealth v. Prescott, supra at 260-261. Id. at 261 & n.4. Id. at 261. Id. Id. Id. Commonwealth v. Prescott, supra at 261-262. Id. at 262. Id. Id. Id. Id. Commonwealth v. Prescott, supra at 262.

78

New Eng. L. Rev. Mass. Crim. Dig.

v. 47 | 75

reported the case to the SJC.32 III. Issues Presented 1. Whether the enactment of G.L. c. 41, 97D, which requires police departments to maintain the confidentiality of police reports they receive involving rape or sexual assault, modifies the publics right of access to certain search warrant materials.33 2. Whether the judge erred in ordering the release of the impoundment of the redacted affidavit, since good cause existed for the continued impoundment of the entire affidavit.34 IV. Holdings and Reasoning 1. The SJC restated the principle that, under common law, there is a presumption that a search warrant affidavit should be made available to the public once the warrant has been returned.35 The SJC was not persuaded by the petitioners argument that reports or conversations regarding sexual assault or rape are prohibited from public disclosure pursuant to 97D, regardless of whether such information is later incorporated in a search warrant affidavit or other document filed in court.36 Despite the fact that the statute precludes these reports and conversations from becoming public record, the SJC held that the statute, by its terms, does not preclude publication of these reports or the content of a victims conversations once they are disclosed in court.37 Without a clear intent to abrogate an area traditionally guided by the common law, the SJC declined to construe a statute as modifying common law.38 Also, the SJC refused to adopt a construction of 97D that would be at odds with the principle that blanket prohibitions on public access to court records are to be avoided.39 The SJC foundlooking at legislative historythat the legislature made no mention of court documents but only of records of police departments.40 As such, there can be no inference that the legislature intended 97D to reach beyond reports in the possession of police departments.41
32 33 34 35 36 37 38 39 40 41

Id. Id. at 264. Id. Id. Id. at 265. Commonwealth v. Prescott, supra at 265. Id. at 266. Id. Id. at 267. Id.

2013

Commonwealth v. Prescott

79

2. Reviewing the judges order for abuse of discretion, the SJC looked to whether good cause existed for the continued impoundment and restriction of the publics access to these judicial records.42 The SJC rejected the petitioners argument that the judge erred in balancing the defendants interests against the publics interest in favor of public disclosure since a defendants interests in impoundment trumps the interest of the public.43 Rather, the SJC stated that the judge applied the correct legal standard while weighing the publics interest against the complainants right to privacy and OConnells right to a fair trial.44

42 43 44

Id. at 268. Commonwealth v. Prescott, supra at 269-270. Id. at 271.