Commonwealth v. Kelsey (Lawyers Weekly No. 10-018-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11087 COMMONWEALTH vs. DARRYL J. KELSEY. Essex. October 1, 2012. ‑ February 8, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Practice, Criminal, Revocation of probation, Disclosure of identity of informer. Due Process of Law, Probation revocation, Disclosure of evidence. Complaints received and sworn to in the Lynn Division of the District Court Department on February 1 and September 19, 2008. A proceeding for revocation of probation was heard by Richard A. Mori, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Rebecca A. Jacobstein, Committee for Public Counsel Services, for the defendant. Kenneth Bresler, Assistant District Attorney, for the Commonwealth. LENK, J. While serving a period of probation for unrelated convictions, the defendant allegedly sold “crack” cocaine to a confidential police informant. Prior to his probation revocation hearing, he moved for disclosure of the informant’s identity. A District Court judge denied the motion on the ground that such disclosure is not required in the context of a probation revocation proceeding. The judge then found that the defendant had violated the terms of his probation and revoked the defendant’s probation. The defendant timely appealed, and we transferred the case here on our own motion. The question to be decided is whether a defendant facing probation revocation due to an alleged new criminal offense is entitled to disclosure of the identity of an informant who was a participant in the alleged offense, the only nongovernment witness to the offense, and the only percipient witness to the entire alleged transaction. We conclude that, in such circumstances, disclosure may be appropriate, and that the judge erred in denying the defendant’s motion on the ground that disclosure is never required in probation revocation proceedings. Accordingly, we vacate the order and remand for further proceedings.[1] 1. Background. We recite the events of December 22, 2009, based on testimony at the probation revocation hearing by Detective Sean Brady of the Marblehead police department. On that day, a confidential informant agreed to make a drug purchase from the defendant, who was on probation for two unrelated sets of convictions. Brady searched the informant, leaving him with one hundred dollars in cash and his cellular telephone. The informant telephoned the […]