MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The Commonwealth appeals from an order dismissing a criminal charge against the defendant for violating an abuse prevention order, G. L. c. 209A, § 7, and from an order denying the Commonwealths motion to reconsider. The defendants motion to dismiss argued that the Commonwealth had failed to preserve, or alternatively, destroyed exculpatory evidence -- specifically, original screenshots of a Facebook post allegedly written by the defendant. The Commonwealth argues on appeal that the defendant did not satisfy his burden to show that (1) the purportedly lost evidence was ever in the possession or control of the Commonwealth, or (2) the evidence was exculpatory. We reverse.
Background. On November 29, 2016, the defendant was served with an abuse prevention order issued on behalf of the victim. The Commonwealth alleges that ten days later, on December 9, 2016, the defendant published a lengthy post disparaging the victim, on the Facebook page of a local realtor (Facebook post). The realtor took screenshots of the Facebook post (screenshots), and e-mailed copies of the screenshots to the victim on December 9, 2016. Apparently, the realtor also deleted the post from her Facebook page. The victim forwarded the email, including the copies of the screenshots she received from the realtor, to the local police department on December 11, 2016.
On December 9, 2016, the Commonwealth issued a criminal complaint against the defendant, charging him with one count of vandalizing property and one count of violating the abuse prevention order. In August 2018, the defendant filed a motion to dismiss for failure to provide discovery (initial motion to dismiss), which a judge denied. In the order denying the initial motion to dismiss, the judge found that the Commonwealth was in compliance with existing discovery orders.
At some point in the autumn of 2018, the Commonwealth provided the defendant with discovery, which included paper copies of the e-mails and screenshots that the victim had forwarded to the police. The Facebook post depicted in the screenshots does not have a date on it, but the screenshots themselves, which appear to have been captured on a cell phone, indicate that the screenshots were captured at 10:24 P.M.
2
In November of 2018, the defendant filed a “motion pursuant to Rule 17 to preserve and order the production of third-party evidence of [the victim].” The motion asked the court to order the victim “to preserve and then produce,” among other things, “[a]ny and all original screen shots [in original digital format]” of the Facebook post. A judge allowed the motion to preserve in December of 2018. The handwritten order is difficult to read, but appears to state the following: “Motion to preserve allowed. Comm to establish from witness existence of any of requested items before next date.”
In July 2019, the defendant filed a motion to dismiss the abuse prevention order charge. The motion to dismiss was based on the Commonwealths purported “failure to preserve and/or the destruction of claimed screenshot(s) of alleged ‘Facebook post(s)’ and/or email(s) supposedly containing screenshot(s) of alleged ‘Facebook post(s).’ ” According to an affidavit from defendants counsel that accompanied the motion, “the Commonwealth has denied the existence of any originals ․ [and] represented that [the victim] also had no originals.” The defendant argued that without the “original” screenshots, he could not determine the date of the Facebook post. Based solely on the “great significance and materiality” of the evidence sought, the defendant further argued that “there is more than a reasonable possibility that original screenshot(s) ․ would have produced” exculpatory evidence. The motion to dismiss did not mention Mass. R. Crim. P. 36, 378 Mass. 909 (1979), or any issues concerning the delay in bringing the case to trial.
In September of 2019, a judge held a nonevidentiary hearing,
3
and then granted the motion to dismiss over the Commonwealths objection. The judge did not render a written decision, but noted from the bench that “[t]his is a really old case.” The judge later denied the Commonwealths motion to reconsider, stating as follows:
“The Comm[onwealth] has had more than ample time to produce the evidence and has failed to do so, resulting in prejudice to the defendant. While the Comm[onwealth] technically did not lose evidence that it never acquired, the Comm[onwealth] was on notice that it needed to obtain evidence via Rule 17 and failed to do so in a timely fashion” (emphasis added).
This appeal followed.
Discussion. The Commonwealth argues that the abuse prevention charge should not have been dismissed, and we agree. The record does not support a conclusion that the Commonwealth lost or destroyed exculpatory evidence, and accordingly, dismissal on that ground was incorrect.
When faced with allegations of lost or destroyed exculpatory evidence,
4
a judge must first consider whether a defendant satisfied “the initial burden of demonstrating the exculpatory nature of that evidence.” Commonwealth v. Williams, 455 Mass. 706, 718 (2010). To do so, the defendant must “establish[ ] a reasonable possibility, based on concrete evidence rather than a fertile imagination” that the lost evidence would be favorable to his case (quotations omitted). Commonwealth v. Neal, 392 Mass. 1, 12 (1984). If a defendant meets his initial burden, the judge then balances “the Commonwealths culpability, the materiality of evidence, and the prejudice to the defendant.” Williams, supra at 718.
The judge erred by not undertaking the above analysis here. Indeed, in this case, the defendant did not meet his initial burden because there is no evidence that the Commonwealth actually lost or destroyed evidence. As noted, the basis of the defendants motion was that the Commonwealth had not produced “originals” of the screenshots.
5
However, the defendant did not present evidence that the Commonwealth ever possessed “originals.” It is not disputed that the realtor created the screenshots. Although there is no record as to who, if anyone, actually possessed “originals” of the screenshots, common sense suggests that the “original” screenshots would be in the possession of the realtor who captured them. Indeed, the judge appeared to recognize in his reconsideration order that the Commonwealth had never possessed the original screenshots. The record also indicates that the victim and the police department had digital copies of the screenshots, but the defendant does not allege that any such copies had been destroyed or lost.
Moreover, even assuming that evidence was destroyed or lost, the defendant failed to make a showing that the screenshots in electronic form (that is, the purported “originals”) would have been exculpatory. Instead, the defendant merely asserted “the great significance and materiality” of the evidence in question. Such arguments do not speak to the standard at hand, as material evidence is not necessarily exculpatory. Furthermore, “unexplained assertions” are insufficient to demonstrate a “reasonable possibility” that lost or destroyed evidence was exculpatory. Commonwealth v. Sanford, 460 Mass. 441, 449 (2011).
The case accordingly was not dismissible based upon the destruction of exculpatory evidence.
6
The judge, however, also appeared to base the dismissal on a different ground -- that is, a purported discovery violation. Although no motion for discovery sanctions was before the judge, the reconsideration order stated that the Commonwealth “was on notice that it needed to obtain evidence via Rule 17 and failed to do so in a timely fashion.” On the record before us, the Commonwealth had no such obligation, as the Commonwealth is not required to seek out exculpatory evidence from third parties. Commonwealth v. Beal, 429 Mass. 530, 532-533 (1999). Moreover, there is no evidence that the Commonwealth was directed to produce materials and failed to do so. The defendants November 2018 motion to preserve was directed at the victim, not the Commonwealth, and the judges order on the motion only directed the Commonwealth to “establish from witness [the] existence of any of [the] requested items.” Once again, there is no record that the victim possessed any evidence that was requested, but not produced.
7
Finally, on appeal, the defendant argues for the first time that the judge was justified in dismissing the abuse prevention order charge on an entirely different ground -- prejudicial delay in bringing the case to trial pursuant to Mass. R. Crim. P. 36(c), 378 Mass. 912 (1979). However, rule 36(c) is not mentioned in the defendants motion to dismiss briefing or in the judges orders, and therefore it cannot be a proper basis for dismissal on this record.
The judges September 27, 2019 order dismissing the charge of violating the abuse prevention order and October 29, 2019 order denying the Commonwealths motion to reconsider are reversed.
So ordered.
reversed
FOOTNOTES
2
. At the bottom of the Facebook post shown in the screenshots, there is also a notation reading “8 minutes ago.”
3
. It appears that there were witnesses present for both parties, but no witnesses were called.
4
. A defendant alleging that the Commonwealth lost or destroyed exculpatory evidence may seek various remedies -- including suppression, sanctions, or dismissal -- but the burden on the defendant remains substantially the same, regardless of the remedy sought. Commonwealth v. Sanford, 460 Mass. 441, 446-447 (2011).
5
. The defendant seems to suggest that by “original” he meant any digital copies of the screenshots; however, a copy is not ordinarily an “original.” The defendants requests accordingly were ambiguous.
6
. As the defendant did not meet his burden to make a threshold showing regarding the exculpatory nature of the evidence, we need not balance culpability, materiality, and prejudice. Williams, 455 Mass. at 718.
7
. It appears, from the defendants briefing on appeal, that what the defendant is looking for are any digital versions (as opposed to the hard copy versions already produced) of the screenshots that are in the possession of the Commonwealth or the victim. To the extent these exist, the Commonwealth should produce them.