Commonwealth v. Chism

476 Mass. 171

65 N.E.3d 1171

COMMONWEALTH

v.Philip CHISM & others.¹

SJC–11939.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 7, 2016.

Decided Jan. 4, 2017.

Jonathan M. Albano (Emma D. Hall with him), Boston, for Boston Globe Media Partners, LLC.

Patrick Levin, Committee for Public Counsel Services, for the defendant.

Zachary C. Kleinsasser, Boston, for Eagle Tribune Publishing Company, Inc., was present but did not argue.

Present: GANTS, C.J., BOTSFORD, HINES, GAZIANO, & BUDD, JJ.

GANTS, C.J.

The issue on appeal is whether a Superior Court judge committed an error of law or abused his discretion in denying a defendant's motion to impound a video recording and transcript of a police interview with the defendant that was the subject of a motion to suppress and that was subsequently suppressed. We conclude that the judge applied the correct legal standard in deciding that motion. We also conclude that, where the judge considered both the presumption of public access to judicial records and the defendant's right to a trial decided by a fair and impartial jury, and where he subsequently forbade the duplication of the video recording and transcript, the judge did not abuse his discretion in denying the motion.

Background. In the early evening of October 22, 2013, the defendant's mother informed the Danvers police department that the defendant, who was fourteen years old at the time, was missing. Shortly after midnight on October 23, a Danvers police officer located the defendant walking on a road in Topsfield and transported him to the Topsfield police station, where the backpack he had been carrying was inventoried and he was briefly questioned by the police. The defendant was then transported to the Danvers police station, where, in the presence of his mother, he was interviewed at approximately 2:30 A.M. by a State trooper and a Danvers police sergeant. The entire interview was video recorded. During this interview, the defendant admitted that he had killed Colleen Ritzer (victim), a teacher at Danvers High School, and described the killing and the removal of her body from the school bathroom where she was killed.

A grand jury returned indictments in November, 2013, charging the defendant, among other crimes, with murder in the first degree. In December, 2014, the defendant filed a motion to suppress the statements he made at the Topsfield and Danvers police stations, claiming, among other grounds, that the defendant did not knowingly and intelligently waive the Miranda rights and that the statements were not made voluntarily. On January 5, 2015, the defendant filed a motion to impound "the contents of the videotaped interrogation of the juvenile and the transcript of that interview, should either or both be entered into evidence as exhibits in the course of the hearing on the motion to suppress." The third-party interveners, Boston Globe Media Partners, LLC (publisher of the Boston Globe), and Eagle Tribune Publishing Company (publisher of the Salem News and the Eagle Tribune), opposed the motion to impound.

After two of the four days of hearings on the motion to suppress, the judge heard argument on the motion to impound on January 20 and 21, 2015. At this time, the videotape recording of the defendant's interview at the Danvers police station had been admitted in evidence at the suppression hearing and the transcript of that interview had been marked for identification, but the recording had not been played in open court and neither the recording nor the transcript had been made publicly available. The judge orally denied the motion to impound from the bench, and issued a written memorandum of decision and order on January 23, 2015.

The judge recognized that the exhibits the defendant moved to impound, having been entered in evidence at the suppression hearing, are judicial records. Quoting Commonwealth v. George W. Prescott Publ. Co.,

463 Mass. 258, 262, 973 N.E.2d 667 (2012), and The Republican Co. v. Appeals Court, 442 Mass. 218, 222, 812 N.E.2d 887 (2004), he noted that judicial records "are presumptively available to the public" under the "common-law right of access to judicial records." The judge declared that the public's right to understand his decision on the defendant's motion to suppress statements, a decision he had not yet made, "is of constitutional dimension." Because the voluntariness of the statements was at issue and the defendant's statements "are probative concerning the issue of voluntariness," the judge found that his decision "will inevitably involve an in-depth discussion of the statements the defendant seeks to suppress."² The judge declared:

"[I]f the motion to impound were allowed, the court would be left with two unsatisfactory options: the court could hear argument on the important issue of whether the Commonwealth has met its burden of proving voluntariness beyond a reasonable doubt at side-bar and impound the record of that portion of the argument; alternatively, the court would be forced to speak in such cryptic terms that it would impair a robust discussion and leave the public distrustful of the process."

The judge also predicted that, regardless of his ruling on the motion to suppress (and, implicitly, his ruling on the motion to impound), the substance of the defendant's recorded statements during the videotaped interview would likely become public prior to empanelment.³

The judge recognized that release of the video recording and transcript "necessarily involves divulging inflammatory content" and would make the selection of a fair and impartial jury "more challenging." However, the judge found that, "[g]iven the size of the community, there is no concern that pretrial publicity, even if pervasive, would inevitably lead to a tainted jury or an unfair trial." He added that he was "confident" that an indifferent jury could be selected, and that he was "equipped to ensure [that] the defendant's ... right to a fair trial [under the Sixth Amendment to the United States Constitution] is preserved and [to] minimize any prejudicial impact on the defendant."

The judge granted the defendant's motion to stay the order and barred release of the videotape and transcript to allow time for the defendant to appeal. On January 26, 2015, the defendant applied for interlocutory relief from a single justice of the Appeals Court pursuant to Rule 12 of the Uniform Rules of Impoundment Procedure, seeking review of the judge's denial of the motion to impound, claiming that the judge "abused his discretion and committed an error of law in concluding that ‘good cause’ does not exist for the requested impoundment." See The Boston Herald, Inc. v. Sharpe, 432 Mass. 593, 601–603, 737 N.E.2d 859 (2000) (Sharpe ) (setting forth procedure for appealing under Uniform Rules of Impoundment Procedure to Appeals Court and Supreme Judicial Court). On February 5, the single justice denied the defendant's request for interlocutory relief, concluding that the judge did not abuse his discretion and "carefully balanced the defendant's interest in a fair trial and the public's common-law and Constitutional right to access court proceedings." The single justice also extended the duration of the stay to February 6.

On that date, the defendant filed a petition for relief under G.L. c. 211, § 3, asking a single justice of the Supreme Judicial Court for Suffolk County to reverse the order of the single justice of the Appeals Court, again claiming that the judge abused his discretionand committed an error of law in concluding that there was not "good cause" for the requested impoundment. In July, 2015, the single justice allowed the petition for relief, concluding that neither the single justice of the Appeals Court nor the motion judge "appear [ed] to have considered the appropriate factors in balancing the [defendant's] right to a fair trial before an impartial jury under the Sixth Amendment ... and the [interveners'] rights of access, either under the First Amendment to the United States Constitution or at common law." The single justice therefore vacated the denial of the motion to impound and remanded the matter to the Superior Court for reconsideration in light of "the appropriate factors." See Sharpe, 432 Mass. at 602, 737 N.E.2d 859 (focus of single justice's review of petition filed pursuant to impoundment rules "should be on whether the single justice of the Appeals Court erred, [but] the resolution of the inquiry might require [looking] indirectly at the underlying order of the judge").

The single justice of the county court essentially concluded that the single justice of the Appeals Court and the motion judge committed two legal errors. First, she concluded they erred by applying the First Amendment strict scrutiny standard applicable to the closing of a court room to the public rather than the good cause standard applicable to the impoundment of court records. Second, she concluded that they erred by failing to consider "whether the documents sought to be impounded were indeed public records, subject to a presumptive common[-]law right of access." She declared that "[b]ecause the documents have been suppressed, there is scant, if any, basis to conclude that there is any public right of access to them." The single justice quoted the assertion in United States v. McVeigh, 119 F.3d 806, 813 (10th Cir.1997), cert. denied sub nom. Dallas Morning News v. United States, 522 U.S. 1142, 118 S.Ct. 1110, 140 L.Ed.2d 163 (1998), that "the right of access to suppression hearings and accompanying motions does not extend to the evidence actually ruled inadmissible in such a hearing." She also concluded that, apart from these legal errors, the single justice and the motion judge abused their discretion by not properly weighing the qualified public right of access to the video recording and transcript "against the ‘paramount’ right of the [defendant] to a fair trial before an impartial jury." Regarding the risk of...