Wing v. Commissioner of Probation (Lawyers Weekly No. 10-204-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11842 ELMER WING vs. COMMISSIONER OF PROBATION. Suffolk. September 8, 2015. – December 28, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Criminal Records. Evidence, Criminal records, Disclosure of evidence, Impeachment of credibility. Practice, Criminal, Record, Disclosure of evidence, Discovery, Witness, Confrontation of witnesses. Statute, Construction. Constitutional Law, Access to criminal records, Witness, Confrontation of witnesses. Due Process of Law, Disclosure of evidence, Impeachment by prior conviction. Witness, Impeachment. Destruction of Property. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 12, 2015. The case was reserved and reported by Cordy, J. Adam M. Bond for the plaintiff. Sarah M. Joss, Special Assistant Attorney General, for the defendant. Mary Lee, Assistant District Attorney, for the Commonwealth. HINES, J. In this appeal we decide whether a criminal defendant’s right to disclosure of a prospective witness’s criminal record under the mandatory discovery provisions of G. L. c. 218, § 26A, and Mass. R. Crim. P. 14 (a) (1) (D), as amended, 444 Mass. 1501 (2005), extends to a criminal record sealed under G. L. c. 276, § 100A. Elmer Wing, who stands charged with malicious destruction of property over $ 250 on a complaint issued in the Wareham Division of the District Court Department, sought an order compelling production of the complaining witness’s sealed criminal record. A judge denied the motion. The matter is now before us on a single justice’s reservation and report of Wing’s petition for relief under G. L. c. 211, § 3, to the full court. Wing claims that the mandatory disclosure required by G. L. c. 218, § 26A, and rule 14 (a) (1) (D) is not subject to an exception for sealed criminal records. He also claims that disclosure is necessary to effect his constitutional right to confrontation of the complaining witness. Reading the potentially conflicting statutes harmoniously, as we are obliged to do, we conclude that G. L. c. 218, § 26A, and rule 14 (a) (1) (D) do not require disclosure of criminal records sealed pursuant to G. L. c. 276, § 100A.[1] We conclude also that Wing has failed to establish a constitutional right to disclosure for confrontation purposes where he seeks only impeachment based on the witness’s prior criminal conviction. Background. We summarize only those aspects of the procedural history pertinent to the resolution of the issues presented in this appeal. Although the facts underlying the charge of malicious […]