COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

MIDDLESEX COUNTY 2009 SITTING

No. 10369________________________________

COMMONWEALTH OF MASSACHUSETTS, Appellant,

v.

JOHN ODGREN,Appellee.

________________________________

ON INTERLOCUTORY APPEAL FROM AN ORDER OF THESUPERIOR COURT ALLOWING A MOTION TO SUPPRESS RECORDINGS

OF THE DEFENDANT’S JAIL CALLS______________________________________________________

BRIEF FOR THE COMMONWEALTH______________________________________________________

ISSUE PRESENTED

Did the judge err in suppressing recordings of

telephone calls from the Plymouth County Correctional

Facility on the grounds that the Commonwealth obtained

them by subpoenas duces te cum , where (1) the defendant

had no standing to move to suppress; (2) G.L. c. 277,

§ 68 authorized it to issue the subpoenas without first

getting judicial approval; (3) the keeper of records did

not move to quash, and in fact voluntarily sent the

recordings directly to the District Attorney’s Office;

and (4) the subpoenas did not subvert the provisions of

Rule 14, but furthered them?

STATEMENT OF THE CASE

Prior Proceedings

On January 19, 2007, the defendant was arrested for

the murder of James Alenson and arraigned in the Fram-

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ingham District Court. (R.A.1 204-205.) From then until

his Superior Court arraignment on March 6, he was held

at the Department of Youth Services Secure Unit at the

Plymouth County Correctional Facility (PCCF). (R.A. 7,

205-206.)

On February 2, 2007, the parties appeared in the

District Court for a pretrial conference, and agreed

that the next date would be March 5. (R.A. 2, 205.)

Defense counsel requested that that date be set down for

a probable cause hearing, and Justice Paul F. Healy, Jr.

commented, “he’s entitled to a probable cause hearing.”

(R.A. 2.) The prosecutor replied, “He is, Your Honor. .

. . And we’ll take that into consideration in our

investigation.” (R.A. 2.)

On February 9, 2007, the Commonwealth faxed a sub-

poena duces te cum to the PCCF’s keeper of records for

production of recordings of the defendant’s telephone

calls for the period from January 19 through February

12, 2007. (R.A. 184-186.) It directed that the keeper

of records appear in the Framingham District Court on

March 5, or “[i]n lieu of a court appearance you may

provide the requested records prior to the court date

mentioned above.” (R.A. 184.)

On seven dates between February 13 and March 1,

1 The Record Appendix is cited “R.A. __”; the ImpoundedRecord Appendix, “I.R.A. __”; and the transcript of thesuppression hearing, “Tr. __.” (The transcript is the110-page volume received in the Superior Court February26, 2009, not the earlier incomplete version.)

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2007, the prosecutor presented evidence to the grand

jury. (R.A. 160.) On March 1, it returned an indict-

ment alleging that on January 19, 2007 in Sudbury, the

defendant murdered James Alenson. (R.A. 4, 10.)

On March 2, 2007, the probable cause hearing then

scheduled for March 5 in the Framingham District Court

was continued to March 16. (R.A. 206.) On March 14, a

nolle pro se qui was entered in the District Court, and so

the probable cause hearing was never held. (R.A. 205.)

On April 2 and May 14, 2007, the Commonwealth sent

three more subpoenas duces tecum to the PCCF for

production of recordings of the defendant’s telephone

calls for periods encompassing February 13 to July 31,

2007. (R.A. 188-191; Tr. 30-32.) They had return dates

of days when there were then nonevidentiary hearings

scheduled in Superior Court – i.e. , April 30 for a sta-

tus conference and May 30 for a pretrial conference –

though both of those hearings were later continued, the

former by joint request of the parties, and the latter

by the court. (R.A. 6.) On June 12, 2007, the Common-

wealth provided to the defense discovery of the jail

call recordings that it had obtained by those three sub-

poenas duces tecum . (R.A. 24.) On July 26, the

Commonwealth sent a fourth subpoena duces tecum for

calls from the period from May 15 through July 26.

(R.A. 187.)

According to the Superior Court tracking order, the

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deadline for the defendant to move to suppress was

January 17, 2008. (R.A. 16.) That date came and went

and he did not move to suppress. ( See R.A. 9.) On Ja-

nuary 24, he filed notice of intent to rely on a defense

of lack of criminal responsibility. (R.A. 249.)

On February 25, 2008, in Commonwealth v. Dubose ,

SUCR No. 2007-10019, Superior Court Justice Patrick J.

Riley ruled to suppress recordings of another defen-

dant’s telephone calls from the Nashua Street jail in

Suffolk County on the grounds that the prosecution im-

properly used grand jury subpoenas to obtain them but

did not present them to the grand jury (R.A. 129-130),

and Dubose had a residual privacy interest that his

recorded calls not be turned over to the prosecution

without a specific security or evidentiary reason that

society supposedly would recognize as reasonable (R.A.

136-146). Relying on Dubose , this defendant moved on

April 24, 2008, to suppress the recordings of his calls,

arguing that (1) to obtain a subpoena duces te cum , the

Commonwealth should be required to comply with Rule

17(a)(2) (R.A. 48-51); (2) under Dubose , he had a

residual privacy interest in his jail call recordings

that they not be turned over to the prosecution (R.A.

52-63); and (3) the Commonwealth’s obtaining the jail

call recordings violated his constitutional rights to

communicate with his family and friends (R.A. 63-68).

On May 6, 2008, the Commonwealth filed a memorandum

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in opposition, arguing that the defendant had consented

to disclosure of his jail calls by making them after

signing a form stating that his use of the telephone

system amounted to his consent (R.A. 161-165); he had no

subjective expectation of privacy in them, or one that

society would recognize as reasonable, because he made

them after hearing warnings and seeing posted notices

that they were being recorded (R.A. 165-174); the Com-

monwealth properly obtained the recordings by G.L. c.

277, § 68 subpoenas (R.A. 174-175); and anyway he could

not show prejudice because the Commonwealth could show

that it was entitled to the recordings under Mass. R.

Crim. P. 17(a)(2) (R.A. 176-177). For an evidentiary

hearing on the motion to suppress, the Commonwealth

served subpoenas on officials from the Plymouth County

Sheriff’s Department and witnesses to whom the defendant

had spoken in those calls, including his parents, bro-

ther, and friend. ( See R.A. 155.) The defendant moved

to quash the subpoenas of the brother and friend on the

grounds that their attendance would be inconvenient

because of their school schedules. (R.A. 156.)

At an evidentiary hearing on May 14, 2008, Justice

Raymond J. Brassard heard the testimony of George Pyne,

telephone system administrator at the PCCF, and received

ten exhibits, including CDs of the jail call recordings

(Exhibits 6 & 7A). (Tr. 1-110; R.A. 180-206; I.R.A. 1.)

The judge declined to reach the constitutional issues

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raised in the defendant’s motion to suppress, instead

allowing it on the ground that the Commonwealth should

not have sent subpoenas for the jail call recordings

without first filing a motion pursuant to Commonwealth

v. Lam pron , 441 Mass. 265 (2004). (R.A. 214; Tr. 18.)

After noting that “there is no indication . . . that the

Commonwealth in any way acted in bad faith” (R.A. 213;

Tr. 88), the judge ruled that the law had changed since

the Court stated in Lam pron that pursuant to G.L. c.

277, § 68, “a subpoena for documents in the possession

of a nonparty may be issued by a prose cu tor over his or

her own signature,” 441 Mass. at 270-271; he interpreted

G.L. c. 277, § 68 and that sentence in Lampron to mean

only that a prosecutor may perform the ministerial act

of signing a subpoena du ces tecum for a witness to ap-

pear at trial. (Tr. 81, 90.) He rejected the Common-

wealth’s argument that the subpoenas were proper because

they were returnable on dates on which hearings were

scheduled, noting that although a probable cause hearing

was scheduled for March 5, 2007, “these hearings are

seldom, if ever, conducted in a context of a first de-

gree murder charge.” (R.A. 219.) The judge ordered the

Commonwealth to turn over to the Superior Court all co-

pies of the jail call recordings and any notes made from

them, and invited the prosecutor to file a Lam pron mo-

tion to re-obtain them. (R.A. 221-223; Tr. 94-96.)

On May 21, 2008, the Commonwealth filed timely no-

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tice of appeal from the order allowing the motion to

suppress. (R.A. 9b, 256.) It also moved pursuant to

Mass. R. Crim. P. 17(a)(2) for a summons to issue to the

PCCF for the defendant’s recorded phone calls and

visits, along with accompanying paperwork, for a shorter

period than that sought by the subpoenas: from January

19, 2007 (the date of his arrest) until March 6, 2007

(the date of his Superior Court arraignment, when he was

transferred from the PCCF to Westborough State

Hospital). (R.A. 241-248.) To make its Lam pron show-

ing, it filed an affidavit of the trial prosecutor and

eleven exhibits. (R.A. 249-255; I.R.A. 6-50.) By order

of the judge, that showing did not rely on the jail call

recordings the prosecutor had already obtained, review-

ed, and turned over to the Superior Court in compliance

with the judge’s May 14 order, and which the judge had

impounded. (R.A. 9b, 221.) On May 23, the defendant

filed an opposing memorandum with an attachment. (R.A.

257-265; I.R.A. 51-56.)

At a nonevidentiary hearing on May 23, 2008, Jus-

tice Brassard denied the motion, ruling that the Common-

wealth had not shown any of the four Lampron prongs.

(R.A. 267-275.) The judge reasoned that the Common-

wealth was seeking the documents too early, because it

was “approximately four months in advance” of the sche-

duled trial date, and Mass. R. Crim. P. 17(a) (2) “is

not to be converted in any way into an effort to obtain

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discovery.” (R.A. 267.) The judge again declined to

reach the constitutional arguments raised in the

defendant’s motion to suppress, terming them “close and

difficult,” but noted that “of course all of that would

have to be looked at” immediately before trial. (R.A.

270-271.) The Commonwealth filed timely notice of

appeal from that order. (R.A. 276.)

On July 3, 2008, Single Justice Robert J. Cordy

denied the Commonwealth G.L. c. 211, § 3 relief from the

May 24 order denying a Lam pron summons, but allowed it

leave to pursue this interlocutory appeal of the May 14

order allowing suppression of the jail call recordings

it had obtained by its G.L. c. 277, § 68 subpoenas.

(R.A. 279.) The Single Justice noted that “the issue,

and in particular the proper interplay between G.L. c.

277, § 68, and Mass. R. Crim. P. 17(a) (2) (as further

explicated by Commonwealth v. Lam pron , 441 Mass. 265

(2004) and its progeny), is important to the administra-

tion of justice in the Commonwealth.” (R.A. 279-280.)

Statement of the Facts

Expected Evidence at Trial

The Commonwealth anticipates that at trial it will

prove as follows:

In January 2007, the victim James Alenson was a

freshman at Lincoln-Sudbury High School. (R.A. 13.)

The defendant was a student there in a special needs

program, and had a special interest in a class on foren-

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sic evidence. (R.A. 11.) The defendant had never met

the victim, did not know his name, and had not been

bullied, teased, taunted, or in any way confronted by

him. (R.A. 13.) On January 19, the defendant brought a

13-inch straight-edged meat-carving knife to school in

his coat. (R.A. 13.) In a boys’ bathroom, the

defendant went up to the victim and with that knife in-

flicted slash marks to his throat, then stabbed him

three times in the abdomen: once through the rib case

into his lung; a second wound in the stomach thrusting

into his liver; and a third wound 5_ inches deep into

his heart and esophagus. (R.A. 13.) During the attack

the victim said, “What are you doing?” and “You’re

hurting me,” then struggled out of the bathroom and

collapsed. (R.A. 13.)

The attack was overheard by another student who was

inside a bathroom stall. (R.A. 13.) The defendant told

that student to come out, he would not be hurt, and to

get help. (R.A. 13.) The student came out, saw the

bloody knife on the floor, and kicked it away from the

defendant. (R.A. 13.) While the other student went to

get help, the defendant started to leave the area, then

returned and knelt by the victim, taking his pulse as he

gasped for air. (R.A. 13-14.) The victim was later

taken to the hospital and pronounced dead at 8:12 a.m.

(R.A. 14.)

When school officials arrived, the defendant, still

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crouched over the victim, said, “I did it, I don’t know

why, I just snapped.” (R.A. 14.) After police arrived,

he repeated “I did it” several times. (R.A. 14.) When

police began informing him of his Mi randa rights, he

produced his own Miranda card from his wallet; when fo-

rensic technicians began processing the scene for evi-

dence, he tried to help them. (R.A. 14.) There was

visible blood on his hands and clothing, which he

pointed out to them. (R.A. 14.) At the scene and at

booking he made statements including, “if the media says

it’s video games or the books it wasn’t I don’t know

what it was”; “if you get any information on that kid’s

status I would like to know”; and asked if the penalty

for manslaughter was 10 to 15 years. (R.A. 14.) In his

notebook he had written, “If it looks like murder it

was” and “If it looks like an accident it wasn’t.”

(R.A. 14-15.)

Evidence at Suppression Hearing

At the evidentiary hearing on the motion to sup-

press, the judge heard evidence as follows:

That same day, January 19, the defendant was ar-

rested for murder, arraigned in Framingham District

Court, and held in custody at the PCCF. (R.A. 11-15,

204-205.) At booking at the PCCF, he filled out a PIN

form listing the telephone numbers of the friends and

family he wished to call, and was assigned a PIN number.

(Tr. 40-41, 54-56, 85-87; I.R.A. 1.) The PIN number

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tracks each phone call to a particular inmate, and the

telephone system permits the person using that PIN num-

ber to call only people on that inmate’s call list.

(Tr. 40-42, 85-86.) The system records not only

telephone calls but also in-person visits, where the

inmate and visitor speak through telephones on opposite

sides of a transparent wall. (Tr. 51-52, 85.) Each

time an inmate makes a telephone call or a visit call,

the parties to the call hear a warning stating that it

is being recorded and monitored. (Tr. 52-53.) The

defendant stipulated that when he made calls, he, his

parents, and his friends heard those warnings. (Tr. 4,

86; R.A. 182-183.) On January 26,2 he signed a form

stating: “Your acceptance of the I[nmate]PIN and use of

the inmate telephones will be deemed as consent to the

conditions and restrictions placed upon inmate telephone

calls, including call monitoring, recording, and call

detail.” (I.R.A. 1.)

On or about Friday February 9, George Pyne, the

telephone system administrator at the PCCF, received the

prosecutor’s subpoena with the return date of the March

5, 2007 probable cause hearing. (Tr. 28-30, 37.) In

response, within a day or two3 he copied the defendant’s

2 The defendant must have filled out an earlier PIN form,because he made a call on January 23, which he could nothave made without filling out a PIN form to get a PINnumber. (Tr. 54-56; R.A. 192.)3 When defense counsel pointed out that the subpoena Mr.Pyne received on Friday afternoon, February 9 sought

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jail calls from the PCCF’s hard drive for the period

from January 23 to February 12, 2007 onto a compact disc

and sent them to the Middlesex District Attorney’s Of-

fice. (Tr. 32, 36-38, 43; Exs. 7 & 7A.) During that

time the defendant made 327 minutes and 12 seconds of

calls. (R.A. 192; Tr. 38, 51.) Asked on cross-

examination why he did not show up in the Framingham

District Court on March 5, Mr. Pyne explained, “I’m not

required to show up and testify in every case.” (Tr.

48.) It has always been his practice to respond to

District Attorneys’ subpoenas by sending recordings

directly to them. (Tr. 49.) He also responded to the

three later subpoenas within a day or so after receiving

them. (Tr. 37.)

During the decade Mr. Pyne has been the telephone

system administrator at the PCCF, he has responded to

thousands of subpoenas from District Attorneys for jail

calls; on average, he responds to about 150 each month.

(Tr. 39, 85.) The PCCF Inmate Telephone System Manual

permits outside criminal justice agencies “access to re-

corded tapes within the scope of their legally autho-

rized request” and “[l]egally authorized requests will

include court orders and subpoenas.” (Tr. 44; R.A.

calls up to Monday February 12 (R.A. 184, 186), and thePCCF Inmate Telephone System Manual noted that outsideagencies’ requests for “future recorded conversations”were not to be honored without a court order (R.A. 200),Mr. Pyne replied that when he received such a request,he usually sent it to the sheriff’s legal department for

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200.)

SUMMARY OF THE ARGUMENT

1. The defendant lacked standing to move to sup-

press the recordings of his jail calls. He had no pri-

vilege or reasonable expectation of privacy in them.

(Pages 16-21.)

2. G.L. c. 277, § 68 and Mass. R. Crim. P. 17(a)

(1) authorize a District Attorney to issue a subpoena

duces tecum for a witness to bring nonprivileged records

to an evidentiary hearing. Lampron held that Rule

17(a)(2) precludes defense counsel from summonsing

privileged records to his office without judicial

approval. Nothing in Rule 17(a)(2), Lampron , or its

progeny precludes a prosecutor from issuing a subpoena

duces tecum for a witness to bring documents to an evi-

dentiary hearing, or the witness from voluntarily

sending the documents to the prosecutor in advance. Re-

quiring prosecutors to obtain judicial approval before

issuing § 68 subpoenas for nonprivileged records would

interfere with their investigation of crimes, violate

the separation of powers, and clog the trial courts with

motions. (Pages 21-35.)

3. Rather than appear at the hearings, the witness

voluntarily complied with the subpoenas by sending the

records to the prosecutor’s office. Even if there were

technical defects in the issuance of or compliance with

them to make the decision, but could not remember if he

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the subpoenas, the defendant was not prejudiced. The

Commonwealth could have obtained the recordings by grand

jury subpoenas, trial subpoenas, or a search warrant.

(Pages 35-42.)

4. The subpoenas did not subvert the provisions of

Rule 14, but furthered them. Rule 14 does not give the

Commonwealth a means to get the recordings, because they

are not in the defendant’s possession. Rule 14 requires

the prosecutor to provide discovery of the defendant’s

statements well in advance of trial. That is

particularly so in a criminal responsibility case.

(Pages 42-49.)

ARGUMENT

I. THE DEFENDANT LACKS STANDING TO CHALLENGE THEG.L. c. 277, § 68 SUBPOENAS.

To begin with, contrary to the motion judge’s ru-

ling (R.A. 72-74), the defendant had no standing to move

to suppress his jail calls which the Commonwealth

obtained by G.L. c. 277, § 68 subpoenas. The witness to

whom they were directed – the keeper of records of the

Plymouth House of Correction – was represented by coun-

sel and did not move to quash it. See Matter of a Rhode

Island Grand Jury Sub poena , 414 Mass. 104, 111 (1993)

(target of grand jury investigation did not have stan-

ding to challenge subpoena duces tecum , only witness

did). To have standing to challenge a subpoena duces

tecum , a defendant must have a reasonable expectation of

did so in this case. (Tr. 46-50, 85-86.)

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privacy in the items sought. See gene ral ly J. Grasso &

C. McEvoy, Sup pres sion Mat ters Under Mas s a chu setts Law

§ 3-4 (2006-2007 ed.).

At argument, the motion judge said the defendant

had standing to challenge the subpoenas because he is “a

defendant in . . . a capital case.” (Tr. 72-74.) But

by that logic, every murder defendant would have

standing to preclude the Commonwealth from issuing a

subpoena duces tecum for, e.g. , a convenience store to

turn over a surveillance video. Contrary to the judge

(Tr. 73-74), this Court’s conferring standing on the

Commonwealth to challenge a defendant’s subpoena of a

rape victim’s privileged records, Commonwealth v. Lam ,

444 Mass. 224, 229 (2005), does not mean this defendant

has standing to challenge the subpoenas here. The Lam

Court noted that a third-party witness may be unrepre-

sented by counsel, and the Commonwealth has an interest

in preventing unnecessary harassment of witnesses. Id. ;

see also Mass. R. Prof. Cond. 3.8, comment [1] (“A

prosecutor has the responsibility of a minister of

justice and not simply that of an advocate.”). In con-

trast, a defense attorney must act as the advocate for

the defendant alone, and quite properly has no such al-

truistic role. See Mass. R. Prof. Cond. 1.7 & 4.3.

Here the judge declined to rule on whether the de-

fendant had any reasonable expectation of privacy in the

jail calls, maintaining that he should be “reluctant to

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reach constitutional-type issues” when he could rule on

the narrower, procedural ground that the Commonwealth

supposedly should not have issued the subpoenas in the

first place. (Tr. 18.) His reticence was misguided.

Although ordinarily appel late courts do not decide con-

stitutional questions unless they “necessarily must be

reached,” Com mon wealth v. Co lon-Cruz , 393 Mass. 150, 154

(1984), tri al courts can and must, when a constitutional

issue is raised, make any and all findings of fact that

may be relevant to the rulings of law that will be re-

viewed by an appellate court, in order to avoid

piecemeal interlocutory appeals. See, e.g. , Com -

monwealth v. Hil ton , 450 Mass. 173, 178-180 (2007)

(remanding second interlocutory appeal to motion judge

for further findings, where findings he did make were

erroneous and evidence could support conclusion of in-

voluntariness or voluntariness), S.C. , 443 Mass. 597,

618-619 n.12 (2005) (remanding claim of involuntariness

made for first time on interlocutory appeal).

Notwithstanding the motion judge’s reticence, the

record is clear that the defendant had no reasonable ex-

pectation of privacy in the jail calls, and this Court

should rule that he had no standing to move to suppress

the evidence the subpoenas yielded. He conceded that

each jail call contained a warning that it was “being

monitored and recorded” (R.A. 44, 104; Tr. 52-53), but

nonetheless argued that he had a “residual privacy in-

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terest” that the jail would not turn them over to the

prosecution “absent a specific security or evidentiary

reason.” (R.A. 53-54.) The judge heard uncontroverted

evidence that the defendant signed the form acknow-

ledging that his acceptance of the PIN number and use of

the inmate telephones amounted to consent to monitoring

and recording of calls. (I.R.A. 1.) The defendant sti-

pulated that he, his parents, and his friends heard and

understood the warnings that the calls were being moni-

tored and recorded.4 (Tr. 4, 86; R.A. 182-183.) Com pare

Com mon wealth v. Boyarsky , 452 Mass. 700, 707 (2008) (as-

suming, without deciding, that inmate had standing to

raise wiretap challenge to admission of jail calls,

where record unclear as to whether third party heard

warning about recording).

Here, the defendant’s conversations with his family

and friends were not privileged. See Mat ter of a Grand

Jury Subpoena , 430 Mass. 590, 600 (2000) (declining to

create parent-child privilege for 14-year-olds accused

of rape). Nor has he demonstrated that he had any

reasonable expectation of privacy in them – and it was

his burden to do so. Boyarsky , 452 Mass. at 708; see

also Cacicio v. Se c retary of Public Safe ty , 422 Mass.

764, 772-773 (1996) (monitoring of inmates’ calls does

4 In fact, the prosecutor told the judge at the beginningof the motion hearing that on one recording of a visitcall, the defendant put the telephone down and spoke tohis parents and brother through the glass to avoid hisvoice being recorded. (Tr. 9.)

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not violate Fourth Amendment or Article 14). Cf.

Common wealth v. Cote , 407 Mass. 827, 836 (1990) (decli-

ning to suppress defendant’s phone answering service

records subpoenaed but improperly not presented to grand

jury; he had no “constitutionally recognizable privacy

interests” in them). No reasonable expectation of pri-

vacy arose from the language in the PCCF Inmate Tele-

phone System Manual permitting outside criminal justice

agencies “access to recorded tapes within the scope of

their legally authorized request[s]” which “ in clude

court orders and subpoenas” (R.A. 200 (emphasis added));

as Mr. Pyne explained, his legal department has

instructed him that court orders and subpoenas are

“examples” of legally authorized requests (Tr. 44).

Beyond that, the defendant conceded (R.A. 44) that he

did not receive a copy of that manual, so he could not

have relied on its language. See Uni ted States v. Con-

ley , 531 F.3d 56, 59 (1st Cir. 2008) (O’Connor, J.)

(language in prison policy did not undermine inmate’s

consent to telephone monitoring, because inmate unaware

of policy).

II. IN CONSIDERING THE INTERPLAY BETWEEN G.L. c.277, § 68 AND MASS. R. CRIM. P. 17(a)(2), THECOURT SHOULD RULE THAT A PROSECUTOR NEED NOTOBTAIN JUDICIAL APPROVAL BEFORE ISSUING ASUBPOENA DUCES TECUM FOR NONPRIVILEGED,NONCONFIDENTIAL RECORDS.

The Massachusetts statute giving prosecutors sub-

poena power provides:

The attorney general and district attorneys

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may is sue subpoenas under their hands for witnessesto appear and testify on behalf of the com-monwealth, and such subpoenas shall have the sameforce, and be obeyed in the same manner, and underthe same penalties, in case of default, as ifissued by the clerk of the court.

G.L. c. 277, § 68 (emphasis added). In November 1835,

the Legislature enacted the precursor to that statute,

R.S. 1836, c. 136, § 25, in the wake of the Ursuline

Convent riots.5 Before then a prosecutor would secure a

witness’ appearance by requesting a justice of the peace

to issue a writ of summons. St. 1836, c. 86, § 39; St.

1791, c. 53, § 6. With G.L. c. 277, § 68, the Legisla-

ture has entrusted prosecutors with the power to sub-

poena witnesses without first seeking judicial approval.

Some 143 years after the Legislature entrusted pro-

secutors with subpoena power, R.S. 1836, c. 136, § 25,

the Supreme Judicial Court promulgated Mass. R. Crim. P.

17, 378 Mass. 885 (1979). It provides: “A summons

shall be issued by the clerk or any person so authorized

by the General Laws .” Rule 17(a)(1) (emphasis added).

That includes the District Attorney, who is “so

5 Although hundreds of people had witnessed the burningof a convent in Charlestown by an anti-Catholic mob, allbut one of the defendants were acquitted after materialwitnesses facing death threats refused to appear andtestify for the Commonwealth. See Report of theCommittee Relating to the Destruc tion of the Ur su lineConvent, August 11, 1834 13 (1834) (recommending thatlegislature give subpoena power to investigatingcommittee); The Charlestown Convent: Its De struction bya Mob 29-31, 57-58, 80 (1870) (describing attorneygeneral’s difficulty in getting witnesses to testify)(both bound together in Social Law Library at KF223.M375 T75 1834); see also Commonwealth v. Buzzell , 33Mass. (16 Pick.) 153 (1834) (Shaw, C.J.) (describing

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authorized” by G.L. c. 277, § 68. Rule 17(a)(2) then

provides that “A summons may also command the person to

whom it is directed to produce the books, papers,

documents, or other objects designated therein.” Taken

together, those two subparts of Rule 17(a) plainly

authorize a District Attorney to summons documents from

a witness. Indeed, this Court has recently read G.L. c.

277, § 68 to mean that “a subpoena for documents in the

possession of a nonparty may be issued by a pro se cu tor

over his or her own signature.” Lam pron , 441 Mass. at

270-271 (emphasis in original); see also Commonwealth v.

Lieb man , 379 Mass. 671, 677 (1980) (prosecutor

improperly used grand jury subpoenas to get documents to

prepare already pending indictment for trial, but

documents “could have been obtained by trial subpoe-

nas”).

The prosecutor’s statutory authority to issue sub-

poenas, G.L. c. 277, § 68, also includes subpoenas duces

tecum . Indeed, “[t]he powers to compel the testimony of

a witness and to compel the production of documents are

so similar in nature and so fundamental to the gathering

of evidence in judicial proceedings that one is hard put

to imagine a reason for permitting the former and

rejecting the latter.” Ap pli ca tion of Grand Jury of

State of New York , 8 Mass. App. Ct. 760, 762 (1979); see

also Bull v. Loveland , 27 Mass. (10 Pick.) 9, 14 (1830)

evidentiary issues at trial resulting in acquittal).

- 21 -

(Shaw, C.J.) (“There seems to be no difference in

principle, between compelling a witness to produce a

document in his possession, under a subpoena duces

tecum , in a case where the party calling the witness has

a right to the use of such document, and compelling him

to give testimony, when the facts lie in his own know-

ledge.”). Simply adding the duces tecum clause does not

change the essential nature of a G.L. c. 277, § 68 sub-

poena. That is why Massachusetts statutes authorizing

compelled production of evidence – including G.L. c.

277, § 68 – do not explicitly refer to the production of

papers, but only the summonsing of witnesses, and not

until the adoption of Rule 17(a)(2) in 1979 was there

“specific, separate, general authorization for subpoenas

duces tecum ,” though “the power of our courts to issue

such subpoenas has never been doubted.” Ap pli ca tion of

Grand Jury of State of New York , 8 Mass. App. Ct. at

764.

The third sentence of Rule 17(a)(2) states: “The

court may direct that books, papers, documents, or ob-

jects designated in the summons be produced before the

court within a reasonable time prior to the trial or

prior to the time when they are to be offered in evi-

dence and may upon their production permit [them] or

portions thereof to be inspected and copied by the par-

ties and their attorneys if authorized by law.” How-

ever, that language that “[t]he court may direct” a

- 22 -

witness to bring documents to court in advance of a hea-

ring does not preclude the prosecutor from issuing a

subpoena duces tecum for a witness to bring documents to

an evidentiary hearing, or preclude a witness from

voluntarily sending the documents to the prosecutor in

advance.

In Lampron , the Court discussed the “showing requi-

red before a summons for the production of documentary

evidence and objects may issue,” 441 Mass. at

268, repeatedly referring to “the defendant” as the

moving party, as he was in that case. Looking to F.R.

Crim. P. 17(c) as an analogous rule, the Lampron Court

held that “‘the party moving to subpoena documents to be

produced prior to trial must establish good cause, sa-

tisfied by a showing: (1) that the documents are evi-

dentiary and relevant; (2) that they are not otherwise

procurable reasonably in advance of trial by exercise of

due diligence; (3) that the party cannot properly

prepare for trial without such production and inspection

in advance of trial and that the failure to obtain such

inspection may tend unreasonably to delay the trial; and

(4) that the application is made in good faith and is

not intended as a general “fishing expedition.”’” 441

Mass. at 269, quoting United States v. Nixon , 418 U.S.

683, 699-700 (1974). The prosecutor was not required to

establish those four prongs to a judge before issuing

the G.L. c. 277, § 68 subpoenas, but here he could have.

- 23 -

As shown by the prosecutor’s Lampron showing (R.A. 249-

255; I.R.A. 6-50), the defendant’s recorded calls are

plainly relevant to issues including his mental state.

Cf. Com mon wealth v. Vin nie , 428 Mass. 161, 178 (though

“somewhat thin,” defendant’s statements to police about

call he made on night of murder amounted to “reasonable

grounds” to believe defendant used phone to concoct ali-

bi, so prosecutor properly issued G.L. c. 271, § 17B

subpoena), cert. de nied , 525 U.S. 1007 (1998).

The federal rule contains a sentence essentially

the same as the third sentence of Mass. R. Crim. P.

17(a)(2). F.R. Crim. P. 17(c)(1) (“The court may direct

the witness to produce the designated items in court

before trial or before they are to be offered in

evidence.”). But the federal rule has a recent amend-

ment that is quite telling. It provides:

After a complaint, indictment, or information isfiled, a subpoena requiring the production of per-sonal or confidential information about a victimmay be served on a third party only by court order.Before entering the order and unless there areexceptional circumstances, the court must requiregiving notice to the victim so that the victim canmove to quash or modify the subpoena or otherwiseobject.

F.R. Crim. P. 17(c)(3) (as amended Dec. 1, 2008). If

that “The court may direct . . .” sentence already meant

that any subpoena du ces tecum – even one from a

prosecutor seeking nonconfidential information – must

be issued by a judge, then that amendment would have

been unnecessary.

- 24 -

Notwithstanding the prosecutor’s statutory subpoena

power, G.L. c. 277, § 68, this motion judge interpreted

cases subsequent to Lampron as requiring that the Com-

monwealth file a Mass. R. Crim. P. 17(a) (2) motion and

get leave of court before it issued a subpoena for

documents from a third party. (R.A. 214-217 (citing

Lam , 444 Mass. at 230-231; Com monwealth v. Mitchell , 444

Mass. 786, 793 n.14 (2005); and Com mon wealth v. Dra heim ,

447 Mass. 113, 118 n.12 (2007)).) See also K. Smith,

Cri mi nal Prac tice & Procedure § 28.16 (Mass. Prac. vol.

30A) (3d ed. 20076) (“[p]rosecutors and defense counsel

may not, without judicial approval, summon persons or

documents from third parties to their offices, prior to

trial”) (cited by motion judge at R.A. 215, 218-219; Tr.

89, 92-93). But Lam and Mit chell involved defendants’

motions for G.L. c. 233, § 1 summonses for records, some

of which were privileged or confidential; those

defendants did not have the statutory subpoena power

that G.L. c. 277, § 68 gives to District Attorneys. In

Dra heim , the Commonwealth was seeking blood samples from

the defendant and her children, and because of the inhe-

rently intrusive nature of that search, it sought a

court order, for which the Court held it had to satisfy

Rule 17(a)(2). 447 Mass. at 118 n.2; see also Mat ter of

6 That edition was published in August 2007, months afterthe prosecutor issued the subpoenas. The correspondingsection of previous editions contains no such limitationon the Commonwealth’s subpoena power. See K. Smith,supra § 1554 (1983 ed. & Supp. 1999).

- 25 -

a Grand Jury In ves ti ga tion , 427 Mass. 221, 223-224

(1998) (discussing mechanisms by which Commonwealth may

obtain blood samples). None of those authorities

precludes a prosecutor from issuing a G.L. c. 277, § 68

subpoena duces tecum for records to an evidentiary

hearing, or the witness from responding by voluntarily

sending the records to the prosecutor in advance.

The judge theorized that G.L. c. 277, § 68 authori-

zes a prosecutor to perform “merely the mechanical, ad-

ministerial” act of “sign[ing]” a subpoena, but not to

issue it. (R.A. 81; Tr. 98.) That is not what the

statute says: it says a prosecutor may “issue” a sub-

poena, and it will have the same force as one issued by

a clerk. G.L. c. 277, § 68.

Contrary to the defendant’s argument below (Tr.

65), defense counsel does not have subpoena power equi-

valent to that granted to a District Attorney by G.L. c.

277, § 68. Defense counsel must request issuance of a

summons from a clerk, notary public, or justice of the

peace. See G.L. c. 233, § 1. One reason the summonses

in Lampron were improper was that they would have given

any witness to whom they were directed the impression

that they had been issued by a neutral and detached

magistrate who had ruled that the witness was required

to produce the evidence or be subject to punishment. In

contrast, a G.L. c. 277, § 68 subpoena – especially one

directed to the keeper of records of a jail – gives only

- 26 -

the quite proper impression that the prosecutor has de-

termined to call that witness at an evidentiary hearing.

Prosecutors have greater authority to investigate evi-

dence than private attorneys have. Cf. Matter of Cros-

sen , 450 Mass. 533, 567-568 (2008) (government attor-

neys’ greater leeway in conducting investigations is

constrained by “unique restraints” including supervisory

oversight, duty to disclose exculpatory evidence, and

possibility of suppression).

As recognized by Lampron , 441 Mass. at 270-271, the

Commonwealth’s G.L. c. 277, § 68 authority to issue sub-

poenas is not coextensive with that of a defendant.

This case illustrates several reasons why. First, the

Commonwealth bears the burden of proof, and so it must

have the power to subpoena witnesses and their documents

into court well enough in advance of trial to permit

both parties and their experts to use them at trial.

Second, the Commonwealth has the obligation to disclose

any exculpatory evidence to the defense, Mass. R. Crim.

P. 14(a)(1)(A)(iii), but the defendant has no converse

obligation to disclose inculpatory evidence to the pro-

secution. Third, the prosecutor represents the Common-

wealth and must consider the rights of third parties,

see Lam , 444 Mass. at 229, while defense counsel

represents a single client and must place that client’s

interests over any third party’s privacy or property

rights. Fourth, a keeper of records – particularly a

- 27 -

jail – would likely be quite willing to comply with a

prosecutor’s subpoena for documents, but not one for the

same documents if issued by the defense without a court

order, because of security concerns; indeed, here the

Plymouth Sheriff could have simply sent the records on

the Commonwealth’s verbal request. Finally, requiring

the Commonwealth to satisfy Lampron to obtain evidence

from a third party would interfere with its investiga-

tion of criminal cases, violate the separation of powers

clause, Mass. Decl. of Rights, art. 30, and create de-

lays when the Commonwealth seeks interlocutory relief

from an adverse ruling.

The motion judge’s interpretation of Rule 17 as

invalidating G.L. c. 277, § 68 would effectively create

an investigatory “black hole,” preventing the Com-

monwealth after indictment from subpoenaing documents

for trial without judicial approval. It would transfer

the direction of the investigation and prosecution to

the hands of judges. Here, 15-year-old James Alenson

was brutally murdered. (R.A. 13-14.) The notion that

it would be improper for the Commonwealth to thoroughly

investigate his murder is simply untenable. The

prosecution is sup po sed to be conducting a “fishing

expedition.” See Dis trict Attorney for the Nor folk Dis-

trict v. Ma graw , 417 Mass. 169, 172 (1994) (“the dis-

trict attorney[] is a public officer whose duty it is

fully to investigate the homicide of [the victim]”).

- 28 -

And if the Commonwealth did not “cast a wide net” in its

investigation, the defendant undoubtedly would argue

that its failure to do so meant that it did not prove

its case. See Common wealth v. Bow den , 379 Mass. 472,

485 (1980).

The judge’s reading of G.L. c. 277, § 68 would mean

that every time a prosecutor wanted to issue a trial

subpoena – even for nonprivileged, nonconfidential

records held by a third party who did not object to

compliance – the prosecutor would have to get permission

from a judge. As the prosecutor argued below (Tr. 78),

the Commonwealth would have to seek judicial approval

for the many thousands of subpoenas it routinely issues

– e.g. , medical records of persons treated after a motor

vehicle collision; school attendance records of a child

rape victim; or bank or credit card records of a larceny

victim. In this era of complex communications, prosecu-

tors increasingly use sources of evidence such as

recorded telephone calls, instant messaging, cell tower

records, or emails, many of which may not be apparent

before the grand jury finishes its investigation. In-

deed, here the motion judge heard and credited evidence

that in Plymouth alone, and for jail telephone re-

cordings alone, the keeper of records processes 150

prosecutors’ subpoenas each month. (Tr. 39, 85.)

Extrapolating from that, statewide there would likely be

thousands of subpoenas each month for the many kinds of

- 29 -

nonprivileged, nonconfidential documentary evidence that

prosecutors routinely subpoena under G.L. c. 277, § 68.

Burdening prosecutors and trial courts with the obliga-

tion of obtaining judicial approval for every prosecu-

tion subpoena du ces tecum would overwhelm trial courts

and make compliance with time standards impossible.

Further, requiring the Commonwealth to get judicial

approval to subpoena nonprivileged, nonconfidential

documents from a third party would effectively require

it to jump the same hurdle as if it were seeking to

pierce an attorney-client privilege. Mass. R. Prof.

Cond. 3.8(f); see United States v. Klubock , 832 F.2d

649, 655 (1st Cir. 1987) (SJC Rule 3:08, PF 15 not

inconsistent with F.R. Crim. P. 17 because former pre-

cludes service of subpoena on attorney, while latter go-

verns issuance).

In ruling that the Commonwealth had to satisfy Lam -

pron instead of simply sending its own G.L. c. 277, § 68

subpoena, the judge noted that “there is no indication

. . . that the Commonwealth in any way acted in bad

faith” because the practice of jails’ sending jail call

recordings in response to prosecutors’ subpoenas “was a

wide-spread one and may well be the very same practice

that was followed by other sheriffs’ departments

throughout the Commonwealth.” (R.A. 213.) But the

reason it is a widespread practice is that G.L. c. 277,

§ 68 and its precursors have authorized prosecutors to

- 30 -

issue subpoenas since 1836.

With other statutes, the Legislature has authorized

various state agencies to issue subpoenas7 – apparently

without having to obtain court approval. One of those

statutes even refers to another agency’s subpoena power

as being similar to the unilateral subpoena power of a

prosecutor. See G.L. c. 55, § 37 (election inquest sub-

poenas “enforced in the same manner . . . as . . . a

subpoena in behalf of the commonwealth in a criminal

prosecution”). This Court has construed those statutes

broadly. For example, in Mass. Com m’n Against

Discrimination v. Li berty Mutual Ins. Co. , 371 Mass.

186, 192 (1986), the Court construed G.L. c. 151B, § 3

7 See, e.g. , G.L. c. 10, § 24 (State Lottery Commission);c. 13, § 11A (Board of Allied Health Professionals); c.18C, § 7 (Office of the Child Advocate); c. 22, § 13A(Architectural Access Board); c. 30A, § 12 (state admi-nistrative agencies); c. 31, §§ 71-73 (Civil ServiceCommission); c. 33, § 77 (courts-martial); c. 33, § 90(board of compensation for military claims); c. 55, § 37(election inquests); c. 64K, § 14 (commissioner ofrevenue); c. 94A, § 18 (Commissioner of Food andAgriculture); c. 110A, § 407 (Secretary of State); c.112, §§ 87A_ & 87C_ (Board of Registration of CertifiedPublic Accountants); c. 112, § 87M (Board ofRegistration of Barbers); c. 119A, § 15 (Department ofRevenue Division of Child Support Enforcement); c. 150A,§ 7 (Labor Relations Commission); c. 151A, § 43(Director of Workforce Development, and Division of Un-employment Assistance board of review); c. 151B, § 3(Mass. Commission Against Discrimination); c. 159C, § 8(Attorney General investigating telemarketers); c. 166A,§ 17 (Division of Community Antenna Television); c. 167,§ 2B (Commissioner of Banks); c. 174C, § 1 (Secretary ofState enforcing vehicle protection product warrantiesact); c. 175K, § 3; c. 176D, § 6; & c. 176L, § 11(Commissioner of Insurance); c. 221B, § 6 (child supporthearing officer); c. 251, § 7 (commercial arbitrators);c. S31, § 11A (Massachusetts Emergency Management

- 31 -

liberally, to give the MCAD authority to issue subpoenas

duces tecum during investigations as well as for hear-

ings; it reasoned that “[u]nless the commission has the

power to obtain necessary information during the course

of its investigations, the broad remedial purposes of

the legislation cannot be effectuated, and the

commission will be unable to function effectively.” See

also Boston Po lice Superior Officers Federation v. Ci ty

of Bos ton , 414 Mass. 458, 463 (1993) (Labor Relations

Commission properly issued G.L. c. 30A, § 12(5)

subpoenas duces tecum for police internal affairs

files). It would be inconsistent for the Legislature to

grant subpoena power without court approval for, e.g. ,

the Secretary of State to obtain a Ponzi schemer’s

wife’s bank records, but the District Attorney would

need permission from a judge to get evidence of a murder

from a jail.

III. IN THIS CASE, EVEN IF THERE WERE TECHNICALDEFECTS IN THE ISSUANCE OF AND COMPLIANCE WITHTHE SUBPOENAS, THE DEFENDANT WAS NOTPREJUDICED BECAUSE THE COMMONWEALTH COULDOBTAIN THE RECORDINGS OTHER WAYS.

Here, the prosecutor properly issued the subpoenas,

as authorized by G.L. c. 277, § 68 and Rule 17(a) (1).

Three of the four8 subpoenas directed the keeper of re-

Agency’s civil defense claims board); c. S139, § 4(commission to administer interstate dairy compact).8 As defense counsel pointed out below (Tr. 36, 43), thefourth subpoena had a return date of July 31 (R.A. 187),which does not seem to have been a scheduled court date.The Commonwealth concedes that that was a technicaldefect in that subpoena, see Com mon wealth v. Small wood ,

- 32 -

cords of the PCCF to appear in court on dates on which,

at the times they were sent, the case was scheduled to

be before a court: March 5 (District Court probable

cause hearing), April 30 (Superior Court status

hearing), and May 30 (Superior Court pretrial con-

ference). (R.A. 6, 184, 188, 191.) Con trast Small wood ,

379 Mass. at 887-889 (prosecutor improperly issued G.L.

c. 277, § 68 subpoenas to defendant’s brother and friend

for dates on which case not scheduled in court). They

were signed with the prosecutor’s name,9 under the name

of the Middlesex District Attorney. (R.A. 184, 187,

188, 191.) They did not put the keeper of records under

any misimpression that they had been issued by a grand

jury or a court. Con trast Cote , 407 Mass. at 832 (pro-

secutor improperly used grand jury subpoena to obtain

telephone records, which he did not present to grand

jury). They did not seek privileged records. Contrast

Lam pron , 441 Mass. at 266 (defense counsel improperly

subpoenaed victim’s privileged records to office).

The subpoenas informed the witness that “[i]n lieu

of a court appearance you may provide the requested re-

cords prior to the court date.” (R.A. 184, 187, 188,

379 Mass. 878, 887 (1980), though the defendant did nothave standing and was not prejudiced.9 The defendant has not argued – nor could he – that theparalegal who signed the prosecutor’s name and sent thesubpoenas was not authorized by the District Attorney todo so. Cf. Common wealth v. D’Amour , 428 Mass. 725, 733-735 (1999) (rejecting claim that assistant districtattorney was not authorized to apply for G.L. c. 272,

- 33 -

191.) In response, the witness did not object to the

subpoenas as “unreasonable or oppressive,” Mass. R.

Crim. P. 17(a)(2), or raise any privilege or right of

confidentiality. Contrast Lampron , 441 Mass. at 266

(witness care providers invoked victim’s privileges);

Nixon , 418 U.S. at 688 (witness President invoked execu-

tive privilege). In fact, the witness voluntarily

provided the records directly to the District Attorney’s

office in advance of the then-scheduled March 5 probable

cause hearing, as was his practice. (Tr. 49.) That was

perfectly proper. See Mit chell , 444 Mass. at 791 n.12

(“Any informal extrajudicial process that exists, of

course, by which a party involved in litigation may suc-

cessfully obtain investigative materials that may be of

help in preparing for trial, or may be useful during

trial, is beyond the scope of this case.”). Indeed, the

sheriff could have instituted a policy to send the jail

call recordings to the prosecutor without any subpoena.

See, e.g. , Uni ted States v. No vak , 531 F.3d 99, 101 (1st

Cir. 2008) (O’Connor, J.) (noting that Barnstable county

jail sent jail call recordings on “request[]” of troo-

per). Cf. Boyarsky , 452 Mass. at 708-709 (noting that

record did not reveal what policy Worcester sheriff had

about disseminating jail call recordings to police).

However, there is a defect in the subpoenas here.

They gave the witness the option of sending the recor-

§ 99 wiretap).

- 34 -

dings only to the prosecutor’s office “[i]n lieu of” ap-

pearing in the Framingham District Court on March 5.

(R.A. 184-191.) Had the subpoenas requested that the

witness send a copy of the recordings directly to the

prosecutor in addition to sending one to the court,

there would have been no problem. But a G.L. c. 277,

§ 68 subpoena duces tecum must direct that the witness

send the documents to the court, so that the court can

maintain custody of them before they are offered into

evidence. Indeed, in order to authenticate the docu-

ments under the business records statute, G.L. c. 233,

§ 79J, the prosecutor would have to introduce the

court’s copy. However, here that technical defect did

not prejudice the defendant, because Mr. Pyne identified

the CDs of jail calls as the ones he sent, and anyway

the recordings can still be re-obtained from the PCCF’s

hard drive. (Tr. 32-33, 40.) See Small wood , 379 Mass.

at 889 (prosecutor improperly issued G.L. c. 277, § 68

subpoenas to defendant’s brother and friend on dates

when case not in court, but defendant not prejudiced

where that was “revealed to the defendant ‘sufficiently

in advance of trial to permit investigation’”) (quoting

Commonwealth v. Hang er , 377 Mass. 503, 509 (1979));

Liebman , 379 Mass. at 677 (defendant not prejudiced by

prosecutor’s improper use of grand jury subpoenas to

obtain documents related to already pending indictment,

where he “was made aware of it well in advance of

- 35 -

trial”).

In hindsight, perhaps the prosecutor should have

used any of three other avenues to obtain the jail call

recordings – even putting aside the fourth option of a

Lampron motion, since the Single Justice declined to

grant G.L. c. 211, § 3 relief from its denial. First,

the prosecutor could have used a grand jury subpoena to

obtain at least the first batch of them; when he issued

the first subpoena on February 9, he had not yet even

started presenting evidence to the grand jury. (R.A.

160, 184-186.) However, as of then he had no way of

knowing how long it would take the keeper of records to

comply with the subpoena, how many hours of recordings

would be sent, or how long it would take the grand jury

to review them – but he did know from the February 2

District Court hearing (R.A. 2) that defense counsel was

pressuring him to complete the grand jury investigation

promptly by demanding a probable cause hearing, which

would likely require calling recently traumatized wit-

nesses, who already were testifying in the grand jury,

to testify again in District Court. Against that back-

drop, the prosecutor apparently decided it would be more

efficient to use a G.L. c. 277, § 68 subpoena to bring

the records to the probable cause hearing. Certainly

the defendant was entitled to demand a probable cause

hearing, Mass. R. Crim. P. 3(f), and to insist that it

be scheduled “as soon as may be,” G.L. c. 276, § 38, in

- 36 -

order to pressure the prosecutor to scramble to finish

the grand jury investigation in this complex case. How-

ever, he was not entitled to insist that it be scheduled

on March 5 (R.A. 2) and then later complain when the

prosecutor used G.L. c. 277, § 68 to subpoena evidence

for that date (Tr. 67-68). Indeed, defense counsel ar-

gued before the motion judge that supposedly “it’s a

ruse to argue that there was any real intent to have an

evidentiary hearing.” (Tr. 68.) In that context, it

was unfair for the motion judge to have accused the

prosecutor: “I’m troubled by your saying to me, if you

intend to say it to me seriously, that the Middlesex

District Attorney’s Office contemplated a probable cause

hearing on a murder one charge.” (Tr. 76.)

The second avenue the prosecutor could have taken

would have been to file a motion in limine informing the

court and the defense that he intended to issue a

subpoena duces tecum for the September 15, 2008 trial

date scheduled on the tracking order (R.A. 16), as G.L.

c. 277, § 68 and Mass. R. Crim. P. 17(a)(1) authorized

him to do. The motion in limine could have asked the

court to schedule an earlier compliance date by which it

ordered the keeper of records to produce the recordings

in court. Given the current confusion about the meaning

of the third sentence of Rule 17(a) (2), that approach

might have obviated the issue here. However, the

Commonwealth was not required to take that approach,

- 37 -

especially where the keeper of records did not object to

the subpoenas and the defendant did not have standing to

do so.

The third avenue the prosecutor could have taken

would have been to apply for a search warrant, G.L. c.

276, § 1. See Common wealth v. McDermott , 448 Mass. 750,

769-770 (2007) (police had probable cause to search de-

fendant’s home for documents evidencing his mental state

in the “days and weeks leading up to” the date of the

murders). However, a search warrant would not have

afforded the keeper of records with a forum to complain

if he considered the warrant unreasonable or oppressive,

and its execution would have been more disruptive to the

PCCF.

IV. THE G.L. c. 277, § 68 SUBPOENAS DID NOTSUBVERT THE PROVISIONS OF RULE 14, BUTFURTHERED THEM.

The second sentence of Rule 17(a)(2) provides that

a court on motion “may quash or modify” a summons if it

is “being used to subvert the provisions of Rule 14.”

Here the judge did not quash the subpoenas, but

suppressed the evidence they yielded, reasoning that

they should not have been issued in the first place.

Even so, they were not being used to subvert the provi-

sions of Rule 14, but rather to further its provisions,

in three ways.

First, Rule 14 was not available to the Common-

wealth as a means to get the jail call recordings, be-

- 38 -

cause they are not in the defendant’s possession. See

Mitchell , 444 Mass. at 791 n.11. When the judge commen-

ted that Rule 17(a)(2) “is not to be converted in any

way into an effort to obtain discovery” (R.A. 267; Tr.

99), it seems he was thinking of the word “discovery” as

used in the civil context. See Mass. R. Civ. P. 26(a)

(defining civil discovery as including information

obtained from any source). But in the criminal context,

“discovery” means information obtained from the opposing

party. Mass. R. Crim. P. 14; see Lam pron , 441 Mass. at

268 n.4. The recordings here are not in the defendant’s

possession, custody, or control, and so the Commonwealth

had no means of getting them through its right to reci-

procal discovery, Mass. R. Crim. P. 14(a)(1)(B).

Second, the 2004 amendments to Rule 14 providing

for automatic discovery “reflect[] a conviction that

full, automatic, and even-handed discovery to both sides

will improve both the administration and the delivery of

justice.” Mass. R. Crim. P. 14, Reporter’s Notes –

Revised, 2004. “Comprehensive discovery affords counsel

a full opportunity to prepare the case, rather than be

hijacked by surprise evidence, as the Supreme Court has

noted.” Id. , citing Wardius v. Ore gon , 412 U.S. 470,

473-474 (1973). The Commonwealth needs to obtain the

jail call recordings well in advance of trial in order

to give the defense timely discovery of the defendant’s

statements as it is required to do by Mass. R. Crim. P.

- 39 -

14(a)(1)(A)(i).

Third, because the defendant is raising a defense

of lack of criminal responsibility, the Commonwealth

needs to obtain the recordings enough in advance of

trial so that expert psychiatrists for both sides may

consider them, Mass. R. Crim. P. 14(b)(2)(B)(i), and the

Commonwealth’s expert may incorporate them into her

opinion and written report, Mass. R. Crim. P.

14(b)(2)(B)(iii). Requiring the Commonwealth to wait

until the eve of trial to obtain the defendant’s jail

call recordings “may well cause it to be disadvantaged

in meeting the issues raised by a defendant’s evidence

by virtue of the fact that its expert witnesses will

lack adequate time to examine properly [the] defendant

and his evidence in order to prepare for trial.” Blais -

dell v. Common wealth , 372 Mass. 753, 767 (1977).

Indeed, the recordings of the defendant’s voice in the

days immediately after the crime are quite likely to

contain evidence that could be interpreted by some de-

fense attorney or forensic psychiatrist as exculpatory.

Cf. Commonwealth v. DiGiam bat tis ta , 442 Mass. 423, 446

(2004) (discussing evidentiary significance of recording

of defendant’s voice).

In denying the Lampron motion, the judge pointed

out that Mass. R. Crim. P. 14(b)(2)(B)(i) prohibits the

Commonwealth’s psychiatric expert from conducting an

examination based on the defendant’s statements unless a

- 40 -

judge has found that the defense is likely to offer

them, and in his view it “would be very much . . . at

odds with” that rule for the Commonwealth to be permit-

ted to review many hours of the defendant’s jail calls

after the crime. (R.A. 226.) But that rule, formulated

by the Court in Blaisdell , 373 Mass. at 766-769,

concerns a defendant’s compelled statements during the

examination by the Commonwealth’s expert – it does not

preclude an expert from considering voluntary statements

he made at some other point in time. See also G.L. c.

233, § 23B (precluding admission at trial of defendant’s

statements during criminal responsibility examination

that constitute confession of guilt of crime charged).

Obtaining the jail call recordings well in advance of

trial would give both parties enough time to make

strategic decisions about their admissibility and

prepare motions in li mi ne in this complex area of law.

See, e.g. , Com mon wealth v. Jaime , 433 Mass. 575, 577-578

(2001) (on direct examination, Commonwealth’s

psychiatrist could properly only testify to opinion,

without disclosing underlying facts or data based on

hearsay unless defense elicited them on cross-

examination).

Even after allowing the motion to suppress and de-

nying the Lampron motion, the judge invited the pro-

secutor to re-subpoena the jail call recordings “rea-

sonably in advance of trial,” which he explained meant

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not “literally on the morning they are to be made use

of,” but enough in advance for the defendant to have the

opportunity to move to quash and for his constitutional

arguments to be “looked at” (R.A. 270-271); the judge

had previously termed those constitutional questions

“close and difficult” and declined to reach them because

he felt he should avoid constitutional issues whenever

possible (R.A. 18). The judge ruled that such eleventh-

hour subpoenas would not be likely to delay the trial,

because production of the recordings was not unduly

burdensome to the PCCF, and the Commonwealth’s need to

listen to the recordings for the defendant’s tone of

voice and speech patterns was “a straightforward and

simple matter” which it could accomplish on the eve of

trial by simply having its expert “yield prompt conclu-

sions.” (R.A. 272.) In the judge’s view, “[t]his sort

of undertaking cannot at all be compared to an effort to

digest and understand a complicated mathematical or

accounting iteration of some complex subject.” (R.A.

272.)

On the contrary, appellate courts have ruled that

voice recordings are exactly the sort of evidence that

must be obtained well in advance of trial to permit both

parties to analyze them. See Nixon , 418 U.S. at 701

(“the analysis and possible transcription of the tapes

may take a significant period of time”); Common wealth v.

Green , 72 Mass. App. Ct. 903, 904 (2008) (mistrial

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required where recordings of six telephone calls dis-

closed by Commonwealth mid-trial “were not disclosed in

sufficient time to be processed” by defense counsel).

Beyond that, it is the sort of micromanaging of how the

Commonwealth investigates and tries its case that viola-

tes the separation of powers, Mass. Decl. of Rights,

Art. 30. See Com mon wealth v. Gordon , 410 Mass. 498, 501

(1991) (judge’s acceptance of plea to second-degree

murder violated Commonwealth’s separation of powers

rights and “short-circuited the adversary process by

silencing the people’s elected voice”). Cf.

Commonwealth v. Beal , 429 Mass. 530, 532-533 (1999)

(judge’s order that prosecutor ask rape victim about

counseling history interfered with Commonwealth’s abi-

lity “to investigate and prosecute crimes effectively”).

Further, the judge’s ruling inviting the Common-

wealth to send a summons “reasonably in advance of tri-

al” though not “literally on the morning they are to be

made use of” (R.A. 271) – in other words, by using a

fictitious return date sometime just before trial –

seems to fly in the face of his earlier ruling (R.A.

219; Tr. 93) that it was improper for the Commonwealth

to subpoena the recordings to the March 5, 2007 probable

cause hearing because such hearings “seldom” in fact

occur. The purpose of including a return date on a

summons of a day when a court hearing is scheduled is to

give the witness a time and a place to go in the event

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the witness considers it unduly burdensome, someone

wants to raise a privilege, or some other problem arises

delaying its compliance. See, e.g. , Appli ca tion of

Grand Jury of State of New York , 8 Mass. App. Ct. at

767.

If the Commonwealth were to do as the judge sug-

gested (R.A. 270-271) and simply re-summons the jail

call recordings on the eve of trial, it is entirely

likely that the defendant would re-raise the constitu-

tional issues in his motion to suppress, as the judge

invited him to do (R.A. 270-271), and the trial would

then be delayed. The whole reason why the tracking or-

der (R.A. 16) required the defendant to file his motion

to suppress eight months in advance of trial was to give

the parties sufficient time to litigate the issue,

including possibly seeking an interlocutory appeal,

Mass. R. Crim. P. 15(b). See Superior Court Standing

Order 2-86(II), (III), (VIII).

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CONCLUSION

For the foregoing reasons, the order suppressing

the defendant’s jail calls should be reversed.

Respectfully Submitted,

GERARD T. LEONE, JR.DISTRICT ATTORNEY

by: ________________________Marguerite T. GrantAssistant District AttorneyOffice of the MiddlesexDistrict Attorney15 Commonwealth AvenueWoburn, MA 01801(781) 897-6836BBO No. 553890marguerite.grant@state.ma.us

Dated: March ___, 2009

CERTIFICATE OF COMPLIANCE

I, Marguerite T. Grant, hereby certify that theCommonwealth’s brief complies with the rules of courtthat pertain to the filing of briefs, including but notlimited to: Mass. R. App. P. 16(a)(6), -(e), -(f), -(h),18, and 20.

__________________________Marguerite T. GrantAssistant District Attorney

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