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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.
                                                                   2


    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
                                                                       3


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 destruction of property over $250 are not

specified in the record, the Commonwealth has not disputed

Wing's assertion that the charge is based on the allegation that

Wing caused a security gate at his property to strike and damage

the complaining witness's vehicle.2   During pretrial discovery,

Wing filed a request for mandatory discovery of the complaining

witness's criminal record under G. L. c. 218, § 26A, and rule

14 (a) (1) (D).    The probation department produced the unsealed

entries in the witness's criminal record but withheld the

entries sealed pursuant to G. L. c. 276, § 100A.    Wing filed a

motion to compel production of the sealed criminal record.       The

judge denied the motion, and this petition for review pursuant

to G. L. c. 211, § 3, followed.


     1
       Although G. L. c. 276, §§ 100B and 100C, also concern
sealed criminal records, only § 100A is relevant here.
     2
       The Commonwealth submitted a brief in this case as an
interested party.
                                                                        4


    Discussion.      1.    Right to review under G. L. c. 211, § 3.

The probation department contends that Wing is not entitled to

the review he seeks under G. L. c. 211, § 3, arguing that he has

failed to establish a "substantial claim" of "irremediable"

error sufficient to justify the extraordinary relief available

under the statute.        See Commonwealth v. Jordan, 464 Mass. 1004,

1004 (2012).   We bypass the issue, however, because, when a

single justice reserves decision and reports a case to the full

court, "we grant full appellate review of the issues reported"

(quotation omitted).       Commonwealth v. Goodwin, 458 Mass. 11, 15

(2010).

    2.    Discovery of sealed records.       The issue before us

arises in the context of a potential conflict between a

defendant's statutory right to mandatory discovery of a

witness's criminal record under G. L. c. 218, § 26A, and rule

14 (a) (1) (D), and the privacy protections accorded to former

criminal defendants by the sealing of criminal records under

G. L. c. 276, § 100A.       See Commonwealth v. Pon, 469 Mass. 296,

300 (2014).    We begin the analysis by providing an overview of

the relevant statutes and rule.

    a.    Mandatory discovery of criminal records.       Wing's claim

derives from G. L. c. 218, § 26A, and rule 14 (a) (1) (D), both

of which unequivocally provide for mandatory discovery of a

witness's criminal record.       General Laws c. 218, § 26A, second
                                                                    5


par., applicable to criminal trials in the Boston Municipal

Court and District Court Departments, provides that "[u]pon

motion of the defendant the judge shall order the production by

the commonwealth of the names and addresses of the prospective

witnesses and the production by the probation department of the

record of prior convictions of any such witness" (emphasis

supplied).   Similarly, rule 14 (a) (1) (D) of the Massachusetts

Rules of Criminal Procedure requires that "[a]t arraignment the

court shall order the Probation Department to deliver to the

parties the record of prior complaints, indictments and

dispositions of all defendants and of all witnesses" (emphasis

supplied).   Thus, broadly speaking, a court has no discretion to

deny a defendant access to a witness's criminal record.     Both

G. L. c. 218, § 26A, and rule 14 are silent, however, as to

their application to sealed criminal records.

     The provision for mandatory discovery of a witness's

criminal record was part of a statutory reorganization of the

Massachusetts trial court system.   G. L. c. 218, § 26A, as

appearing in St. 1992, c. 379, § 139.3   Prior to 1986, pretrial

discovery generally, and access to a witness's criminal record

in particular, were left to the court's discretion with

     3
       Mandatory discovery of witnesses' criminal records
initially applied only to the Essex and Hampden Divisions of the
District Court Department, St. 1986, c. 537, § 8, but was later
expanded to apply Statewide, St. 1992, c. 379, § 139.
                                                                  6


predictably different results.    See, e.g., Commonwealth v.

Adams, 374 Mass. 722, 732 (1978) (implicitly recognizing right

of access but requiring showing of prejudice to establish error

in denial of access to criminal record); Commonwealth v.

Collela, 2 Mass. App. Ct. 706, 708-709 (1974) (no error in

denying access to witness's criminal record as prosecution not

required to collect such records for defendants).    The

legislative actions in 1986 and 1992 imposed two fundamental

changes that provide useful context for our consideration

whether mandatory disclosure of criminal records applies to

sealed criminal records.   First, the requirement in G. L.

c. 218, § 26A, second par., that the judge

     "shall issue an order of discovery . . . requiring
     that the defendant be permitted to discover, inspect
     and copy any material and relevant evidence,
     documents, statements of persons, or reports of
     physical or mental examinations of any person or of
     scientific tests or experiments, within the
     possession, custody, or control of the prosecutor or
     persons under his direction and control,"

recognized a defendant's presumptive right to relevant routine

discovery in criminal cases.4    Second, the remaining language

requires that "[u]pon motion of the defendant the judge shall

     4
       Routine discovery includes those types of discovery
specified in Mass. R. Crim. P. 14 (a) (1) (A), as amended, 444
Mass. 1501 (2005), including statements by the defendant, grand
jury minutes, exculpatory facts, contact information for
witnesses, anticipated expert opinion evidence, relevant
exhibits, summaries of identification procedures, and
inducements made to witnesses.
                                                                    7


order . . . the production by the probation department of the

record of prior convictions of any such witness."    G. L. c. 218,

§ 26A, second par.    Against the backdrop of a discovery process

entirely within the judge's discretion, the 1986 and 1992 acts,

St. 1992, c. 379, § 139, and St. 1986, c. 537, § 8, reflect a

legislative intent to streamline the discovery process by

imposing a measure of predictability and efficiency in the

treatment of routine discovery requests, including access to

criminal records.    The presumptive right to routine discovery

accomplished this purpose by relieving a defendant of the

obligation to affirmatively establish a need for and right to

such information, and limited judicial discretion in discovery

orders governed by the statute.    See Commonwealth v. Taylor, 469

Mass. 516, 521-522 (2014) (rule 14 facilitates automatic

production by eliminating defendants' need to request items of

mandatory discovery).    Mandatory discovery of criminal records

likewise contributes to a streamlined discovery process by

removing a barrier to the exercise of the right of impeachment

as provided in G. L. c. 233, § 21.5

     Amendments to rule 14 in 2004, designed to promote

efficiency in the disposition of criminal cases and to "improve

both the administration and delivery of justice," reinforced the

     5
         G. L. c. 233, § 21, as amended through St. 2010, c. 256,
§ 105.
                                                                      8


more liberal approach to discovery as set forth in G. L. c. 218,

§ 26A.    See Report of the Supreme Judicial Court Standing

Advisory Committee on the Rules of Criminal Procedure, at 73

(May 9, 2003).    Rule 14 eliminated the need for a motion

"consistent with criminal procedure," G. L. c. 218, § 26A,

second par., and required automatic disclosure of the designated

information.     See Reporters' Notes to Rule 14 (2004), Mass. Ann.

Laws Court Rules, Rules of Criminal Procedure, at 1507

(LexisNexis 2015-2016).

    b.    The sealing statute, G. L. c. 276, § 100A.    In

contrast, G. L. c. 276, § 100A, prohibits, except in

circumstances not relevant here, the disclosure of a "sealed"

criminal record.     The statute provides in relevant part:

    "Such sealed records shall not operate to disqualify a
    person in any examination, appointment or application
    for public service in the service of the commonwealth
    or of any political subdivision thereof; nor shall
    such sealed records be admissible in evidence or used
    in any way in any court proceedings or hearings before
    any boards or commissions, except in imposing sentence
    in subsequent criminal proceedings . . . ." (emphasis
    supplied).

G. L. c. 276, § 100A, fourth par.     It mandates that "[t]he

commissioner [of probation], in response to inquiries by

authorized persons other than any law enforcement agency, any

court, or any appointing authority, shall in the case of a

sealed record . . . report that no record exists" (emphasis

added).   G. L. c. 276, § 100A, sixth par.
                                                                   9


    The impetus for the enactment of G. L. c. 276, § 100A, was

the Commonwealth's "compelling interest in providing privacy

protections for former criminal defendants" by prohibiting

access to sealed criminal records.    See Pon, 469 Mass. at 300.

The privacy protections extended to former criminal defendants

serves the broader purpose of facilitating their reintegration

into society.    See id. at 306 n.19, 307.

    In resolving the issue before us, we apply the familiar

rule that we construe related statutes "together so as to

constitute a harmonious whole consistent with the legislative

purpose."   Federal Nat'l Mtge. Ass'n v. Hendricks, 463 Mass.

635, 641 (2012), quoting Board of Educ. v. Assessor of

Worcester, 368 Mass. 511, 513-514 (1975).    We are obliged to

discern and give effect to the intent of the Legislature.

Oxford v. Oxford Water Co., 391 Mass. 581, 587-588 (1984).

Statutes "must be interpreted according to the intent of the

Legislature ascertained from all its words construed by the

ordinary and approved usage of the language, considered in

connection with the cause of its enactment, the mischief or

imperfection to be remedied and the main object to be

accomplished."   Lowery v. Klemm, 446 Mass. 572, 576-577 (2006),

quoting Hanlon v. Rollins, 286 Mass. 444, 447 (1934).

Considering both the legislative purposes underlying the

statutes and the specific language chosen to effect those
                                                                  10


purposes, we are persuaded that the judge correctly rejected

Wing's claim that the more general right to discovery of a

witness's criminal record trumps the statutorily protected

privacy interests in sealed criminal records.

      First, the language of the two statutes supports our view

that sealed criminal records are beyond the reach of G. L.

c. 218, § 26A, and the automatic discovery provisions of rule

14.   As noted, G. L. c. 218, § 26A, and rule 14 are silent as to

the application to sealed criminal records.   Although not

dispositive, silence is a factor relevant to the interpretation

of the statute.   "Where . . . a statute is 'simply silent' on a

particular issue, we interpret the provision 'in the context of

the over-all objective the Legislature sought to accomplish.'"

Seller's Case, 452 Mass. 804, 810 (2008), quoting National

Lumber Co. v. LeFrancois Constr. Corp., 430 Mass. 663, 667

(2000).   Where, as explained above, the legislative objective of

G. L. c. 218, § 26A, is to provide for more efficient discovery

in criminal cases, we cannot say that disclosure of sealed

criminal records is necessary to that purpose.   We are

especially reluctant to require disclosure of sealed criminal

records where to do so would contravene the explicit protections

granted to persons under G. L. c. 276, § 100A.   Thus, Wing's

argument that he is entitled to the sealed record based on the

absence of a specific exclusion for sealed records is not
                                                                  11


persuasive in light of the statutory scheme providing

affirmative protection for such records.

    Moreover, where statutes deal with the same subject, the

more specific statute controls the more general one, so long as

the Legislature did not draft the more general statute to

provide comprehensive coverage of the subject area.

Commonwealth v. Irene, 462 Mass. 600, 610, cert. denied, 133 S.

Ct. 487 (2012); Grady v. Commissioner of Correction, 83 Mass.

App. Ct. 126, 131-132 (2013).   Here, G. L. c. 276, § 100A,

offers specific guidelines limiting access to sealed records.

In contrast, G. L. c. 218, § 26A, and rule 14 are general

discovery provisions, and, as such, must yield to the more

specific protections of the sealing statute.

    Wing's argument as to the limits of G. L. c. 276, § 100A,

also is unpersuasive.   Wing urges us to narrowly construe the

statute's prohibitive language, "nor shall such sealed records

be admissible in evidence or used in any way in any court

proceedings."   He asserts that pretrial discovery is "access"

not "use," and that § 100A only limits trial usage of sealed

records after they are obtained.   The difference is illusory.

See Brittle v. Boston, 439 Mass. 580, 585 (2003) (declining to

unduly constrict phrase "criminal proceedings" so as to exclude

matters fairly within scope of criminal misconduct statute).     As

Wing concedes, he seeks the sealed record to "open up other
                                                                    12


proper avenues for discovery" and to "raise a defense."     In the

context of § 100A, the term "use" encompasses Wing's intended

actions, and access is prohibited for that purpose.

     Wing also reads the language, "nor shall such sealed

records be admissible in evidence or used in any way in any

court proceedings . . . except in imposing sentence in

subsequent criminal proceedings," as limiting §100A to

proceedings against the record holder (emphasis added).     G. L.

c. 276, § 100A, fourth par.    There is no such limit in the

statute.    By its plain language, § 100A allows sealed records to

be utilized in sentencing proceedings, but also in proceedings

where there is reasonable cause to believe that a sealed record

may be relevant to an issue of child safety or violence against

another.6   Nothing in the text of the statute specifies that such

proceedings must be against the record holder.

     Here, we also apply the rule that, where two statutes

conflict, the later statute governs because the Legislature is

presumed to be aware of existing statutes when it amends or


     6
       Section 100A allows the use of a sealed record in
sentencing proceedings and "in any proceedings under [G. L.
c. 119, §§ 1-39I, G. L. c. 201, §§ 2-5, G. L. cc. 208, 209,
209A, 209B, 209C, or G. L. c. 210, §§ 1-11A], [in which] a party
[has] reasonable cause to believe that information in a sealed
criminal record of another party may be relevant to (1) an issue
of custody or visitation of a child, (2) abuse, as defined in
[G. L. c. 209A, § 1,] or (3) the safety of any person . . . ."
G. L. c. 276, § 100A, fourth par.
                                                                  13


enacts a new one.   See Commonwealth v. Russ R., 433 Mass. 515,

520 (2001).   In 2010, "the Legislature made changes to the

sealing provisions by enabling earlier automatic sealing under

G. L. c. 276, § 100A, and expanding discretionary sealing to a

broader class of nonconvictions."   Pon, 469 Mass. at 305-306.

As the most recently amended statute, G. L. c. 276, § 100A, is a

renewed limitation on the mandatory discovery provision in G. L.

c. 218, § 26A.7   Given the temporal relationship between the two

statutes, we reject the proposition that a criminal defendant's

right to automatic discovery, absent the implication of a

constitutional right to a sealed criminal record, takes priority

over the later-enacted sealing statute.

     The balancing of the State's "compelling interest" in

reintegrating former defendants into society promoted by G. L.

c. 276, § 100A, against the defendant's interest in a more

efficient and predictable discovery process as provided in G. L.

c. 218, § 26A, and rule 14 yields the same outcome.   We are

persuaded that the more compelling policy interest is the

Legislature's concern that persons convicted of crimes have some

opportunity to become productive members of their communities

once they have paid their debt to society.   Thus, we adopt an

     7
       Rule 14 of the Massachusetts Rules of Criminal Procedure
was amended in 2012. The amendment, however, did not change the
provision for discovery of criminal records. See 463 Mass. 1501
(2012).
                                                                  14


interpretation of G. L. c. 218, § 26A, that accommodates the

Legislature's intent to insure, except in limited circumstances,

the privacy protections embodied in G. L. c. 276, § 100A.

Because Wing's mechanistic application of the automatic

discovery rule to all criminal records would frustrate the

legislative intent, we decline to adopt it in this case.

    Last, we reject Wing's urging to apply the rule of lenity

in our analysis.   The rule of lenity is simply inapplicable

where, as here, the statute contains no ambiguity requiring that

Wing be given the benefit of the ambiguity.   See Commonwealth v.

Roucoulet, 413 Mass. 647, 652 (1992) (rule of lenity applied

only where statute is plausibly ambiguous).

    c.   Constitutional right to discovery of sealed records.

We next address Wing's argument that he is entitled on

constitutional grounds to discovery of the witness's sealed

criminal record.   Relying on Davis v. Alaska, 415 U.S. 308

(1974), and Commonwealth v. Elliot, 393 Mass. 824 (1985), Wing

asserts that his constitutional right to confrontation requires

access to sealed records for impeachment purposes.   The

probation department counters that a defendant's constitutional

right to confrontation is not implicated where he seeks only to

impeach the credibility of a witness based on a prior

conviction.   We agree.
                                                                      15


     The right of confrontation encompasses the impeachment of a

witness with a record of convictions.    This right, however, is

limited to reasonable impeachment, subject to the court's

discretion.     See Commonwealth v. Paulding, 438 Mass. 1, 12

(2002).   In Commonwealth v. Ferrara, 368 Mass. 182 (1975), we

outlined the parameters of the right to impeachment based on a

prior conviction, observing that "[w]e are aware of no

constitutional principle which confers on a defendant in every

case a right to impeach the credibility of a witness by proof of

past convictions or past delinquencies."     Id. at 186-187.    See

also Davis, 415 U.S. at 321 (same) (Stewart, J., concurring).

Following Ferrara, supra, our cases consistently have held that

the court may exercise its sound discretion in ruling on a

defendant's right to impeachment by a record of prior

convictions.8    Wing, claiming only a right of impeachment based

on the witness's sealed record of prior convictions, is subject

to the limitation articulated in Ferrara, supra at 187 (juvenile

records must show "rational tendency" to show bias of witness).

In the absence of a showing that the judge abused her discretion

     8
       See, e.g., Commonwealth v. Harris, 443 Mass. 714, 726-727
(2005) (judicial discretion is prerequisite to use of prior
convictions as impeachment evidence); Commonwealth v. Joyce, 382
Mass. 222, 224-226 (1981) (not all of complainant's prior
prostitution charges admissible because only certain charges
touched on possible motive to lie); Commonwealth v. Santos, 376
Mass. 920, 924 (1978) (witnesses' juvenile records not always
admissible to impeach credibility).
                                                                   16


in denying the right of access to the sealed record for

impeachment on this basis, Wing's claim must fail.

    It is true that we have recognized a defendant's

entitlement "as a matter of right to reasonable cross

examination for the purpose of showing bias or motive."

Commonwealth v. Santos, 376 Mass. 920, 924 (1978).    However,

Wing has failed to demonstrate that he is entitled to disclosure

of the witness's sealed criminal record for this purpose.     Wing

has failed to establish a nexus between the witness's sealed

criminal record and its potential to reveal bias or a motive to

prevaricate.   See Ferrara, 368 Mass. at 186-187.    At most, he

suggests that his suspicion about "the large number of aliases"

in the unsealed criminal record prompted the request for the

sealed entries.   Wing's only recourse, therefore, is to address

the witness's credibility in accordance with the impeachment

restrictions of G. L. c. 233, § 21.

    Nor are we persuaded by Wing's arguments that he is

entitled to access the sealed criminal record for other

constitutional purposes.   Wing claims that he is hindered in his

ability to mount a defense based on bias by the lack of access

to the sealed record.   In Santos, we rejected this argument as a

basis for disclosure, noting that a defendant must "be expected

to make some explanation as to how he expects to show bias."
                                                                      17


Santos, 376 Mass. at 926 n.7, quoting Commonwealth v. Cheek, 374

Mass. 613, 615 (1978).

    Wing's complaint that denial of the sealed record deprives

him of information that could potentially help him access the

witness's out-of-State records is likewise without merit.

Wing's reliance on Commonwealth v. Corradino, 368 Mass. 411, 422

(1975), which permits a defendant to obtain out-of-State records

"when known facts suggest that a witness has a record

elsewhere," is misplaced.     He suggests that the witness's out-

of-State record contains information that will assist him in

establishing bias.     The potential existence of an out-of-State

record is insufficient for this purpose.     Id. at 422-423.      A

person must attest to not having convictions in other States in

order to seal a record in Massachusetts.     See G. L. c. 276,

§ 100A, first par.     Contrary to Wing's assertions, a sealed

record evinces the lack of an out-of-State criminal record.

    Last, Wing argues, for the first time in this appeal, that

he has a constitutional right to present the first aggressor

theory of self-defense and to access the witness's sealed record

for this purpose.    See Commonwealth v. Adjutant, 443 Mass. 649,

659-660 (2005).     The argument has no merit.   As a threshold

matter, Wing makes no attempt to show that Adjutant applies to

the property crime of malicious destruction of property over

$250 charged in the complaint.     See Commonwealth v. Haddock, 46
                                                                   18


Mass. App. Ct. 246, 248-249 (1999) (defense of property, unlike

self-defense, is limited to nondeadly force appropriate in kind

and degree to nature of trespass).    Further, even if the

Adjutant principle is applied to the facts of this case, Wing

has failed to establish a factual basis for the defense.

Commonwealth v. Barbosa, 463 Mass. 116, 136 (2012) (self-defense

applicable only where defendant utilized appropriate means to

avoid physical contact).   Nothing in the record before us

demonstrates that Wing is plausibly able to assert that the

identity of the first aggressor is in dispute and that the

victim has a history of violence.    See Adjutant, supra, at 650.

    Conclusion.   For the reasons stated above, the judge did

not abuse her discretion in denying Wing's motion to compel

production of the witness's sealed criminal record.     Based on

our interpretation of the language of the relevant statutes and

the Legislature's intent in prioritizing the policy interests

promoted by the sealing statute, the mandatory discovery

provisions of G. L. c. 218, § 26A, and Mass. R. Crim. P.

14 (a) (1) (D) do not apply to a criminal record sealed under

G. L. c. 276, § 100A.   Because Wing failed to establish a

constitutional basis for access to the witness's sealed criminal

record, we decline to require its disclosure.      The order denying

Wing's motion to compel production is affirmed.

                                     So ordered.
