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SJC-11929
SJC-11944

                    COMMONWEALTH   vs.   ANGELO TEIXEIRA.

               COMMONWEALTH    vs.   CHRISTOPHER A. MEADE.



         Suffolk.       January 11, 2016. - September 16, 2016.

 Present:     Gants, C.J., Cordy, Botsford, Duffly, Lenk, & Hines,
                                 JJ.1


Boston Municipal Court. District Court, Probable cause hearing.
     Practice, Criminal, Probable cause hearing, Discovery.
     Moot Question.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on July 2, 2015.

     The case was reported by Lenk, J.

     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on August 10, 2015.

     The case was heard by Spina, J.


     Valerie A. DePalma (Jeffrey M. Miller with her) for the
defendants.
     Kathryn Leary, Assistant District Attorney, for the
Commonwealth.

     1
       Justices Cordy and Duffly participated in the deliberation
on this case prior to their retirements.
                                                                    2


     John D. Donovan, Jr., Jesse M. Boodoo, Joshua D. Rovenger,
& David M. Coriell, for Massachusetts Association of Criminal
Defense Lawyers, amicus curiae, submitted a brief.
     Benjamin H. Keehn, Committee for Public Counsel Services,
for Committee for Public Counsel Services, amicus curiae,
submitted a brief.


     LENK, J.    These cases stem from two unrelated, nonfatal

shootings in the Roxbury section of Boston in June, 2015, and

July, 2015.     Angelo Teixeira was arrested for the first

shooting, and Christopher Meade for the second.     Meade and

Teixeira each were charged by complaint in the Boston Municipal

Court (BMC) with a number of felonies, including some that are

outside the final jurisdiction of that court.     Pursuant to G. L.

c. 276, § 38, probable cause hearings were scheduled for each

defendant to determine whether there was sufficient evidence to

bind them over to the Superior Court for trial.     The

Commonwealth was ordered to provide the defendants with

discovery in advance of those hearings.     Noting that judges of

the BMC and the District Court Department2 are not explicitly

authorized, either by statute or by the Massachusetts Rules of

Criminal Procedure, to order discovery in preparation for

probable cause hearings (prehearing discovery), the Commonwealth




     2
       While the discussion concerns judges of the Boston
Municipal Court (BMC), our analysis and conclusion apply equally
to judges of the District Court. See Victor V. v. Commonwealth,
423 Mass. 793, 796 (1996).
                                                                     3


objected to the discovery orders and filed interlocutory

appeals.

     In considering these cases, we must determine whether

judges of the BMC may order prehearing discovery in the absence

of specific authorization from G. L. c. 276, § 38, the Rules of

Criminal Procedure, or any trial court standing order.3      We

conclude that, because such judges have inherent authority to

issue orders essential to their capacity to decide cases, they

may, in their discretion, order prehearing discovery.       We

conclude also that, here, the judges did not abuse their

discretion by issuing these discovery orders, which were limited

in scope and which would have allowed defense counsel reasonably

to prepare for the scheduled probable cause hearings.4

     1.    Background.   a.   Teixeira.   On June 20, 2015, Boston

police officers were dispatched to the scene of a shooting in

Roxbury.    There, they encountered Teixeira, who had been shot in

     3
       We acknowledge the amicus briefs submitted by the
Committee for Public Counsel Services in both cases, and the
Massachusetts Association of Criminal Defense Lawyers in
Teixeira's case.
     4
       Because we affirm the discovery orders on the basis of the
judge's discretionary powers, we do not reach the defendants'
contention that prehearing discovery is necessary as a matter of
constitutional due process. Cf. Myers v. Commonwealth, 363
Mass. 843, 854 (1973) (having disposed of case on statutory
grounds, court declined to decide whether "due process
requirements of the United States Constitution mandate that the
defendant in a probable cause hearing shall have the right to
cross-examine prosecution witnesses and present testimony in his
own defence").
                                                                     4


the leg and soon thereafter was transported to a hospital.     The

officers interviewed three witnesses, including an off-duty

police officer from another jurisdiction, who said that they

heard gunshots and that, subsequently, someone matching

Teixeira's description had fired several shots at "unknown

persons."   Police obtained surveillance footage from a store

near the scene, which showed two individuals -- one of whom is

apparently believed to be Teixeira -- "remov[ing] items from the

store," "flee[ing]" down the street, and "plac[ing] a white

garbage bag in the rear of [a nearby] yard."5   Police recovered

two firearms from the garbage bag.

     On June 24, 2015, a complaint issued in the BMC, charging

Teixeira with four crimes within the final jurisdiction of that

court:   carrying a firearm without a license, G. L. c. 269,

§ 10 (a); carrying a loaded firearm without a license, G. L.

c. 269, § 10 (n); possession of ammunition without a firearm

identification (FID) card as a subsequent offense, G. L. c. 269,

§ 10 (h) (1); and assault and battery by means of a dangerous

weapon, G. L. c. 265, § 15A (b) (three counts).   The complaint

also charged him with two crimes -- carrying a firearm without a

license as a second offense, G. L. c. 269, § 10 (a), (d); and

committing a firearms violation having been convicted of three

     5
       Police reports do not reflect whether the episode recorded
by the surveillance camera occurred before or after the
shooting.
                                                                   5


violent crimes or three serious drug offenses, G. L. c. 269,

§ 10G (c) -- for which final jurisdiction lies only in the

Superior Court.6

     Teixeira was arrested and arraigned the same day.     At

arraignment, the judge scheduled a probable cause hearing for

July 7, 2015.    Over the Commonwealth's objection, the judge

granted Teixeira's motion for discovery in advance of that

hearing.    He ordered that the names and contact information of

the Commonwealth's three witnesses be turned over by the close

of business the following day, and that the surveillance footage

be turned over the following week, four days before the hearing.

The judge also issued a protective order "direct[ing defense

counsel] not to provide to [Teixeira] any contact information on

any witness."    The protective order was later expanded to

prevent Teixeira from learning the names of the civilian

witnesses.

     The following day, June 25, 2015, the Commonwealth filed a

motion for reconsideration with respect to the discovery orders.

A hearing on the Commonwealth's motion was scheduled for June

26, 2105.    At that hearing, the Commonwealth's motion was


     6
       During arraignment on these charges, which took place in
the BMC on June 24, 2015, Teixeira made threatening gestures and
statements to Boston police detectives. This resulted in
additional charges of witness intimidation, G. L. c. 268, § 13B,
and threatening to commit a crime, G. L. c. 275, § 2, both of
which are within the BMC's final jurisdiction.
                                                                    6


denied, and the judge ordered that the witness information be

turned over by the close of business.    The judge did, however,

allow the Commonwealth's motion to continue the probable cause

hearing for approximately one month.

    Later that day, the Commonwealth filed a notice of appeal

with respect to the discovery order, a motion to stay the order

pending appeal, and a request for a written ruling.    The judge

stayed the discovery order until the close of business on June

30, 2015.    The judge also issued a written ruling, explaining

that he had ordered discovery because

    "[a]ffording such minimal discovery as the identities of
    witnesses and an opportunity to view video footage of the
    alleged incident in advance of the probable cause hearing
    is essential to the defendant's ability meaningfully to
    exercise his rights to confrontation and to present
    evidence at that hearing. . . . For example, one of the
    witnesses might describe the alleged shooter differently
    from the way that the defendant is described in the police
    report or from other witness accounts. Without the
    witnesses' identities being disclosed to defense counsel in
    advance of the hearing, such discrepancies, which might
    raise genuine issues with respect to probable cause, could
    not be explored . . . ."

    On June 30, 2015, the Commonwealth filed a motion to

further stay the discovery order.    The judge denied the motion,

and the stay expired, by its own terms, at the close of business

that day.    The Commonwealth did not provide the ordered

discovery.

    The next day, July 1, 2015, Teixeira filed a motion seeking

sanctions.    At a hearing later that day, the judge asked the
                                                                    7


Commonwealth to address why "[nineteen] and a half hours after

that stay expired . . . there's been no compliance."    He noted,

     "[M]y order is in effect . . . [A]s far as I know, it
     hasn't been stayed, and I'm starting to get a little
     impatient, because I feel like I'm trying to do things
     procedurally in a way that respects the law and procedure.
     And I'm starting to feel like not everybody is adhering to
     the same rules."

The judge did not then issue a ruling on sanctions.    Rather, he

allowed the Commonwealth's request for seven days in which to

respond to the defendant's motion for sanctions.

     On July 2, 2015, the Commonwealth filed an emergency

petition in the county court, seeking an immediate stay of

execution of the discovery order, and also seeking to vacate

that order.   The motion for a stay was allowed on July 7, 2015,

and a single justice thereafter reserved and reported the

Commonwealth's petition to the full court.

     On July 30, 2015, a Suffolk County grand jury returned

eleven indictments against Teixeira.7   On August 26, 2015, the


     7
       Teixeira was charged with four counts of attempted assault
and battery by means of a firearm, G. L. c. 265, § 15F; one
count of carrying a firearm without a license as a second
offense, G. L. c. 269, § 10 (a) and (d), and after having been
convicted of three violent crimes or three serious drug
offenses, G. L. c. 269, § 10G (c); two counts of possessing
ammunition without a firearm identification card, G. L. c. 269,
§ 10 (h), and after having been convicted of three violent
crimes or three serious drug offenses, G. L. c. 269, § 10G (c);
one count of carrying a loaded firearm, G. L. c. 269, § 10 (n);
one count of receiving a firearm with a defaced serial number,
G. L. c. 269, § 11C; and two counts of witness intimidation,
G. L. c. 268, § 13B.
                                                                      8


defendant was arraigned in the Superior Court and was provided

with the discovery he had been seeking from the BMC.

     b.   Meade.   Shortly after midnight on July 5, 2015, a

"black male" wearing a red sweatshirt approached a sedan parked

on a street in the Roxbury section of Boston, and fired

approximately three shots into the vehicle.    Four people,

including the driver, were inside; two passengers were hit.     The

driver drove away from the scene, pulled up next to a nearby

police cruiser, and sought help.    The two victims were taken to

a hospital.   Police interviewed the driver and one of the

passengers,8 and obtained a surveillance video recording of the

shooting.

     On July 8, 2015, police showed a photographic array, which

did not contain a photograph of Meade, to the driver and one of

the passengers.    Neither could identify any of the pictured

individuals as the shooter.    On July 10, 2015, Meade was

arrested and held in custody on an unrelated charge.    On July

11, 2015, police presented another photographic array to the

driver and to the passenger,9 this time containing a photograph

of Meade.   Both separately identified Meade as the shooter.


     8
       Because the copy of the relevant police report in the
record is redacted, it is not clear whether the passenger
interviewed was one of the victims.
     9
       It is not clear whether this was the same passenger to
whom police had shown the first photograph array.
                                                                    9


     Two days later, a ten-count complaint issued against Meade

in the BMC.   Three of the counts –- carrying a firearm without a

license, G. L. c. 269, § 10 (a); carrying a loaded firearm

without a license, G. L. c. 269, § 10 (n); and possessing

ammunition without an FID card, G. L. c. 269, § 10 (h) (1) --

were within the final jurisdiction of that court.    The other

seven were not.10   Meade was arraigned the same day.

     At arraignment, a probable cause hearing was scheduled for

August 12, 2015.    In advance of that hearing, Meade sought

discovery of the photographic arrays, several police reports,

and contact information for witnesses mentioned in the reports.

Over the Commonwealth's objection, the judge allowed Meade's

motion for discovery, ordering that the discovery "be disclosed

and turned over by" August 10, 2015, two days before the

hearing.   The judge stated that Meade's "ability to defend

himself and assist his attorney in his defense [at the probable

cause hearing] will be impacted severely if they're not allowed

to obtain this discovery."    She also entered a protective order




     10
       The counts over which there was no final jurisdiction
were four counts of armed assault with intent to murder, G. L.
c. 265, § 18 (b); carrying a firearm without a license as a
second offense, G. L. c. 269, § 10 (a), (d); committing a
firearm violation having been convicted of three violent crimes
or three serious drug offenses, G. L. c. 269, § 10G (c); and
possessing a firearm while committing a felony, G. L. c. 265,
§ 18B.
                                                                  10


allowing disclosure of the witnesses' contact information only

to Meade's counsel.11

     On August 10, 2015, the day discovery was to be turned

over, the Commonwealth filed a petition in the county court

pursuant to G. L. c. 211, § 3, seeking relief from the discovery

order, and also seeking a stay of that order.    A stay issued

later that day, and, on August 14, 2015, the single justice

vacated the order.   The defendant thereafter filed a notice of

appeal.   On October 9, 2015, a Suffolk County grand jury

returned eleven indictments against Meade.12    On November 16,

2015, the Commonwealth provided Meade the discovery that he had

sought in the BMC.

     2.   Discussion.   The Commonwealth contends that the two

judges did not have authority to order discovery in advance of

the probable cause hearings.   Teixeira maintains that the




     11
       On July 31, 2015, the defendant filed a second motion for
discovery, seeking other evidence referenced in the police
report. The court took no action on that motion.
     12
       Meade was indicted on four counts of armed assault with
intent to murder, G. L. c. 265, § 18 (b); carrying a firearm
without a license as a second offense, G. L. c. 269, § 10 (a)
and (d), and after having been convicted of three violent crimes
or three serious drug offenses, G. L. c. 269, § 10G (c);
carrying a loaded firearm, G. L. c. 269, § 10 (n); assault and
battery by means of a dangerous weapon, G. L. c. 265, § 15A; two
counts of assault and battery by means of discharging a firearm,
G. L. c. 265, § 15E; and two counts of attempted assault and
battery by means of discharging a firearm, G. L. c. 265, § 15F.
                                                                  11


Commonwealth should be sanctioned for its failure to comply with

the discovery order in the BMC.

    a.    Mootness.   Because the defendants have been indicted

and are no longer entitled to probable cause hearings, the

discovery orders themselves are moot.    Mass. R. Crim. P. 3 (f),

as appearing in 442 Mass. 1502 (2004).    Commonwealth v. Perkins,

464 Mass. 92, 95 (2013) (Perkins).    See Lataille v. District

Court of E. Hampden, 366 Mass. 525, 531 (1974) (Lataille)

("return of an indictment is itself a determination of probable

cause and renders unnecessary a preliminary hearing").

"However, it is within the discretion of this court to answer

questions that, due to circumstances, no longer may have direct

significance to the parties but raise issues of public

importance and, because of their nature, may be 'capable of

repetition, yet evading review.'"    Perkins, supra, quoting

Lockhart v. Attorney Gen., 390 Mass. 780, 782–783 (1984).

    The issue here -- whether a BMC judge may order discovery

in anticipation of a probable cause hearing -- is one that

"implicate[s] the . . . interests of all defendants who are so

situated, and more generally [is] significant for the proper

administration of the criminal justice system."    See Perkins,

supra.   The issue also is likely to evade appellate review,

since it becomes moot upon the return of an indictment, when a

defendant loses his or her right to a probable cause hearing.
                                                                    12


See Lataille, supra.     Moreover, "[w]e have been advised that the

issue is occurring on a frequent basis in the trial courts and

uncertainty exists whether an order similar to the one[s] in

issue can be entered."     Commonwealth v. Durham, 446 Mass. 212,

217, cert. denied, 549 U.S. 855 (2006).    We therefore consider

the issue raised in these cases.

     b.   Discovery.   Defendants who are charged by complaint in

the BMC, but whose cases will be finally adjudicated in the

Superior Court, have a statutory right to a probable cause

hearing, "unless an indictment has been returned for the same

offense."13   Mass. R. Crim. P. 3 (f).   See Lataille, supra

("indictment is itself a determination of probable cause and

renders" hearing "unnecessary").     General Laws c. 276, § 38,

provides that, "as soon as may be" after a complaint issues, a

BMC judge

     "shall . . . examine on oath the complainant and the
     witnesses for the prosecution, in the presence of the
     defendant, relative to any material matter connected with
     such charge. After the testimony to support the
     prosecution, the witnesses for the prisoner, if any, shall
     be examined on oath, and he may be assisted by counsel in
     such examination and in the cross examination of the
     witnesses in support of the prosecution."



     13
       This right applies both to defendants whose charges are
outside the final jurisdiction of the BMC, and those who are
"charged . . . with an offense within the concurrent
jurisdiction of the [BMC] and Superior Courts for which the
[BMC] will not retain jurisdiction." Mass. R. Crim. P. 3 (f),
as appearing in 442 Mass. 1502 (2004).
                                                                  13


Following this hearing, the judge assesses whether "there is

probable cause to believe that the defendant committed the crime

or crimes alleged in the complaint" and, on that basis, whether

to "bind the defendant over to the Superior Court" for final

adjudication of the charges.14   Mass. R. Crim. P. 3 (f).

     Neither the statute, the rules of criminal procedure, nor

any trial court standing order provides for discovery in advance

of the probable cause hearing.   The question we confront is

whether a judge, in his or her discretion, nonetheless may order

discovery to promote the parties' full participation in the

hearing and, thereby, to assist in the assessment of probable

cause.    See Myers v. Commonwealth, 363 Mass. 843, 851-852 (1973)

("primary function of the probable cause hearing of screening

out 'an erroneous or improper prosecution,' . . . can only be

effectuated by an adversary hearing where the defendant is given

a meaningful opportunity to challenge the credibility of the

prosecution's witnesses and to raise any affirmative defenses he


     14
       The probable cause standard used at such a hearing is
more demanding than "probable cause to arrest." Myers v.
Commonwealth, 363 Mass. 843, 849 (1973). The judge

     "view[s] the case as if it were a trial and he were
     required to rule on whether there is enough credible
     evidence to send the case to the jury. Thus, the
     magistrate should dismiss the complaint when, on the
     evidence presented, a trial court would be bound to acquit
     as a matter of law."

Id. at 850.
                                                                   14


may have" [citation omitted]).   For the reasons that follow, we

conclude that, subject to certain limitations, a judge may order

discovery to assist in this process.

    General Laws c. 276, § 38, is silent on the question

whether a BMC judge may issue discovery orders, or any other

orders, in anticipation of a probable cause hearing.   That such

authority is not provided explicitly in the terms of the

statute, however, does not mean that it does not exist.

"[C]ourts have inherent power 'to do whatever may be done under

the general principles of jurisprudence to insure to the citizen

a fair [hearing], whenever his life, liberty, property or

character is at stake'" (citation omitted).   Commonwealth v.

Charles, 466 Mass. 63, 73 (2013).   We have noted, in this vein,

that "the District Court [and the BMC] have the power to

[issue] . . . orders which are reasonably designed to provide

the means for intelligent consideration of probable cause"

(citation omitted).   Commonwealth v. Hinterleitner, 391 Mass.

679, 683 (1984).   To the extent that a judge's order is "a

legitimate exercise of [this] inherent power of the District

Courts [or BMC], the lack of statutory authorization for that

[order] is immaterial."   Brach v. Chief Justice of the Dist.

Court Dep't, 386 Mass. 528, 535 (1982).

    A court's "[i]nherent powers" constitute, among other

things, those "whose exercise is essential to . . . [the
                                                                  15


court's] capacity to decide cases" (citation omitted).15    Id.

This includes the authority "to facilitate . . . discovery."

DaRosa v. New Bedford, 471 Mass. 446, 454 (2015), quoting

Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209, 214 (2011).

See Cavanaugh v. McDonnell & Co., 357 Mass. 452, 454 (1970),

quoting Owens-Illinois Glass Co. v. Bresnahan, 322 Mass. 629,

631 (1948) (power to order discovery "does not depend upon

statute, but is a part of the general jurisdiction of a court of

equity"); G. L. c. 218, § 19C ("district court and [BMC]

departments of the trial court shall have the same equitable

powers and jurisdiction as is provided for the superior court").

Accordingly, to the extent discovery is "essential" to a judge's

"capacity to decide" the question of probable cause, it is

within his or her inherent powers to order it.   See Brach v.

Chief Justice of the Dist. Court Dep't, supra at 535.

     We are persuaded that, in at least some instances, a judge

reasonably could conclude that prehearing discovery is

     15
       As a general matter, a court's inherent powers are
strongest with respect to matters of procedure. See Brach v.
Chief Justice of the Dist. Court Dep't, 386 Mass. 528, 535
(1982) ("All the inherent powers recognized by this court . . .
have involved the internal functioning of the judiciary").
See, e.g., Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209,
213-214 (2011) (inherent authority "to issue protective
orders"); Commonwealth v. Wilcox, 446 Mass. 61, 69 (2006)
(inherent authority "to grant pretrial bail and [to] compel the
presence of a defendant at trial"); George W. Prescott Publ. Co.
v. Register of Probate for Norfolk County, 395 Mass. 274, 277
(1985) (inherent authority "to impound . . . files" [citation
omitted]).
                                                                   16


"essential."   This is so because, at a hearing pursuant to G. L.

c. 276, § 38, "complete cross-examination and the . . .

present[ation of] affirmative defenses [a]re crucial and

necessary to effectuate a true probable cause standard,"

Lataille, supra at 530; these functions, in turn, often are

facilitated by material obtained through discovery.   See, e.g.,

Myers, supra at 852 (absent evidence obtained by defendant

before hearing and used during cross-examination, "examining

magistrate could not have possibly made an informed judgment").

    The Appeals Court reached a similar conclusion in

Commonwealth v. Silva, 10 Mass. App. Ct. 784, 791 (1980).     In

holding that a prosecutor may be sanctioned for disobeying an

order to provide prehearing discovery, the court presumed that a

District Court judge has inherent authority to issue such an

order.   See id. at 790-791 ("In connection with that hearing, it

is essential that the District Court have the power to enforce

any of its orders which are reasonably designed to provide the

means for intelligent consideration of probable cause . . .").

Similarly, courts in other jurisdictions have held that a

"court[] ha[s] the inherent power to order appropriate . . .

discovery . . . ancillary to [its] statutory power to determine

whether there is probable cause to hold the defendant to

answer."   Holman v. Superior Court of Monterey County, 29 Cal.

3d 480, 485 (1981) (magistrates may order such discovery
                                                                   17


notwithstanding that criminal charges are outside their final

jurisdiction).     See State v. Laux, 167 N.H. 698, 704 (2015)

("circuit court has the inherent authority, within its sound

discretion, to order discovery prior to the preliminary hearing"

even where final adjudication will take place in superior

court); State v. Easthope, 668 P.2d 528, 531 (Utah 1983) ("power

to compel discovery is . . . inherent in the magistrate's power

to conduct" probable cause hearing).    See also People v. Laws,

218 Mich. App. 447, 451 (1996) ("district court may order

discovery in carrying out its duty to conduct preliminary

examinations" and may do so "before the preliminary

examination").16

     This analysis notwithstanding, the Commonwealth contends

that BMC judges have no authority to order prehearing discovery,

and that, even if they have such authority, they ought not to

exercise it.



     16
       But see People v. Quinn, 183 Colo. 245, 251 (1973)
("discovery should not be ordered prior to the preliminary
hearing"); Janklow v. Talbott, 89 S.D. 179, 183 (1975) (same).
The Commonwealth cites two other decisions from other
jurisdictions that are claimed to reflect a similar conclusion.
Those cases however, involved materially different issues from
the question before this court. See State v. O'Brien, 349 Wis.
2d 667, 682 (2013), aff'd, 354 Wis. 2d 753, 850, cert. denied,
135 S. Ct. 494 (2014) (no constitutional right to prehearing
discovery); Almada v. State, 994 P.2d 299, 303 (Wyo. 1999)
(prehearing discovery proper in general, but improper where
judge "ordered the State to permit discovery of material which
did not pertain to probable cause").
                                                                  18


     The Commonwealth notes, first, that BMC judges may not

depart from the rules of criminal procedure, which make no

provision for discovery in advance of a probable cause hearing.

See Carlisle v. United States, 517 U.S. 416, 426 (1996)

("Whatever the scope of [a court's] 'inherent power,' however,

it does not include the power to develop rules that circumvent

or conflict with the Federal Rules of Criminal Procedure").

This silence, the Commonwealth argues, is significant because

the rules anticipate other occasions when BMC judges may or must

issue discovery orders.   See Mass. R. Crim. P. 11 (b), as

appearing in 442 Mass. 1509 (2004) (at pretrial hearing, courts

"shall" consider discovery motions); Mass. R. Crim. P. 14, as

amended, 444 Mass. 1501 (2005) (requiring automatic pretrial

discovery of certain materials); Dist./Mun. Cts. R. Crim. P. 3

(where charges fall within court's final jurisdiction, judge

"shall" issue order at arraignment "requir[ing] the parties to

provide . . . discovery").   These occasions, in the

Commonwealth's view, "occupy the field" and leave no room for

the discretionary discovery at issue here.17


     17
       The Commonwealth also argues that, if the Legislature had
intended to provide defendants with a prehearing right to
discovery, it would have stated so explicitly, much as it has in
other contexts. See, e.g., G. L. c. 231, §§ 61-69 (right to
discovery in civil litigation). The question here, however, is
whether a court has discretionary authority to order discovery,
not whether the Legislature provided defendants with a right to
such discovery.
                                                                   19


    The Commonwealth's contention is unavailing.    The fact that

the procedural rules are silent about a court's authority to

exercise one of its inherent powers does not imply that the

rules envision the court being deprived of that power.   See

Bradford v. Knights, 427 Mass. 748, 752 (1998) ("While the

Massachusetts Rules of Criminal Procedure do not expressly

permit a judge to rehear a matter, no policy prohibits

reconsideration of an order or judgment in appropriate

circumstances," and doing so is an "inherent power of a court"

[citation omitted]).    See also Reporters' Notes (2004) to

Rule 1, Mass. Ann. Laws Court Rules, Rules of Criminal

Procedure, at 1343 (LexisNexis 2015) (rules are "general and

flexible, prescribing only basic essentials").

    Nor are we persuaded that the rules of criminal procedure

cited by the Commonwealth were intended to occupy the field with

respect to discovery.    Those rules concern one specific issue:

the mandatory pretrial discovery process.    See Mass. R. Crim.

P. 13 (e), as appearing in 442 Mass. 1516 (2004) (defendants

have "right to a hearing" on motions for further discovery);

Mass. R. Crim. P. 14 (requiring automatic discovery of certain

materials); Dist./Mun. Cts. R. Crim. P. 3 (at arraignment, judge

"shall" issue discovery order).    Even if these rules set forth

the exclusive means through which mandatory pretrial discovery

is to be conducted, they imply nothing about the availability or
                                                                  20


lack of availability of the discretionary prehearing process at

issue here.18

     As mentioned, the Commonwealth maintains also that, even if

BMC judges have authority to order prehearing discovery, it

would be unwise for them to exercise it.   The Commonwealth

expresses concern that, because prehearing discovery might

reveal the identities of the prosecution's witnesses, it will

lead to witness tampering.19   Such tampering is asserted to be


     18
       Indeed, the Commonwealth concedes in its brief that, "in
the course of a probable cause hearing, there may arise
circumstances in which a judge may properly order a Commonwealth
witness to disclose information that is central to the
determination of probable cause." The rules of criminal
procedure, however, contain no explicit provision concerning
such an order.
     19
       The Commonwealth contends further that prehearing
discovery will not provide defendants with significant practical
benefits, as they can learn the essential aspects of the
Commonwealth's case either at the hearing itself or when
discovery is turned over upon the conclusion of a "prompt grand
jury investigation." See Janklow v. Talbott, 89 S.D. at 181-
182; Superior Court Standing Order 2-86 (discovery to be
provided at arraignment).

     In practice, however, probable cause hearings, which are
meant to be conducted "as soon as may be" after a defendant is
charged, see G. L. c. 276, § 38, have largely become extinct.
This has happened not, as the Commonwealth contends, because
"prompt grand jury investigations" usually lead to the issuance
of an indictment before the scheduled date of the probable cause
hearing, but because the Commonwealth routinely is granted a
series of continuances -- usually between three and four months
in total length –- that postpone the hearing until an indictment
issues and the hearing no longer is required. See Commonwealth
v. Perkins, 464 Mass. 92, 108 (2013) (Gants, J., concurring) ("a
probable cause hearing in a criminal case is virtually never
conducted in the courts of Massachusetts; the only preliminary
                                                                  21


particularly problematic during the early stages of an

investigation, when witnesses might not yet have revealed the

full extent of their knowledge to police or to a grand jury.

See Commonwealth v. Tavares, 459 Mass. 289, 305 (2011) (Gants,

J., concurring) (instances of "victims or witnesses refusing to

cooperate or changing or recanting earlier testimony . . .

occurred in up to ninety per cent of [Suffolk County district

attorney's] cases involving guns, gangs, or serious violence").

    While we acknowledge the gravity of this concern, judges of

the BMC have adequate means at their disposal to address it if

the situation requires.   For example, when discovery is

warranted, they may, as here, issue protective orders concerning

a witness's identity or contact information, allowing it to be

disclosed only to defense counsel.   See Mass. R. Crim. P. 14 (a)

(6) ("judge may, for cause shown, grant discovery to a defendant

on the condition that the material to be discovered be available

only to counsel for the defendant").   See also Berend, Less

Reliable Preliminary Hearings and Plea Bargains in Criminal

Cases in California:   Discovery Before and After Proposition

115, 48 Am. U. L. Rev. 465, 522 n.244 (1998) ("study . . .


screening of a defendant's case is conducted by a grand jury,
sometimes months after the initial appearance").20 Charges of
witness intimidation, G. L. c. 268, § 13B, were pending against
both defendants. In Meade's case, the Commonwealth gave as an
additional reason that the shooting was an apparently "random
act of violence" and that the victims and perpetrator did not
know each other.
                                                                     22


concluded that early and broad discovery in California not only

encouraged more early guilty pleas, but had no impact on witness

intimidation").    Where a protective order is insufficient,

judges simply may deny the discovery request altogether.      Cf.

Cronin v. Strayer, 392 Mass. 525, 534 (1984) (trial court judges

are "in the best position to weigh fairly the competing needs

and interests of parties affected by discovery" [citation

omitted]).

    We turn now to the orders at issue here.    The parties

recognize that, to the extent that BMC judges have authority to

order prehearing discovery, there was no abuse of discretion in

ordering it in these two cases.    In each, the central issue at

the probable cause hearing was likely to be whether the

defendants had been identified correctly by witnesses, and each

defendant sought discovery of materials that would allow him to

test this issue, such as police reports, photographic arrays,

the identities of the witnesses, and surveillance video.       See

Holman v. Superior Court of Monterey County, 29 Cal. 3d 480,

485-486 (1981) (judge properly ordered "limited discovery

directed to the restricted purpose of the preliminary

examination").    Without these materials, as the judge in

Teixeira's case reasoned, "discrepancies [regarding

identification], which might raise genuine issues with respect

to probable cause, could not be explored" at such a hearing.
                                                                   23


See id. at 485 (discovery proper if has been "show[n] that such

discovery is reasonably necessary to prepare for the preliminary

examination").   At the same time, recognizing the Commonwealth's

particularized concerns regarding witness intimidation,20 the

judges in both cases issued protective orders shielding the

witnesses' contact information from the defendants, and the

judge in Teixeira's case issued an order preventing the

defendant from learning their names.   Given that the defendants

demonstrated good cause for seeking discovery directed to the

restricted purpose of the probable cause hearing, that the

resulting orders were carefully circumscribed, and that they

were accompanied by protective orders addressing the

Commonwealth's particularized concerns, we discern no abuse of

discretion.

     c.   Teixeira's motion for sanctions.   Teixeira asks that

this court impose sanctions on the Commonwealth for failing to

comply with the BMC judge's discovery order during the period

before a stay was issued by the single justice.21   He seeks



     20
       Charges of witness intimidation, G. L. c. 268, § 13B,
were pending against both defendants. In Meade's case, the
Commonwealth gave as an additional reason that the shooting was
an apparently "random act of violence" and that the victims and
perpetrator did not know each other.
     21
       The discovery order was issued on June 24, 2015, took
effect on June 30, 2015, and was stayed by a single justice of
this court seven days later, on July 7, 2015.
                                                                      24


dismissal of the indictments or, alternatively, imposition of

another "appropriate sanction."

    The Commonwealth acted inappropriately by failing to comply

with the judge's order.   Even if that order had been issued in

error, the Commonwealth was not without its remedies.      It could

have, as in Meade's case, sought an immediate stay from the

single justice pursuant to G. L. c. 211, § 3.     Instead, it

waited until eight days after the order issued -- and two days

after it went into effect -- to seek such relief.    The

Commonwealth may not fail to pursue a timely appeal and then

disobey a judge's order when the opportunity for appeal is no

longer available.   "Litigants may not resort to self-help

remedies and unilaterally flout court decrees."     Commonwealth v.

Carney, 458 Mass. 418, 433 n.20 (2010).   If a court issues a

directive that a party believes to be unlawful, it "must be

obeyed, and until it is reversed by orderly review, it is to be

respected."   Id., quoting Mohamad v. Kavlakian, 69 Mass. App.

Ct. 261, 264 (2007).

    Nonetheless, we are constrained to conclude that dismissal

would not be an appropriate sanction for the Commonwealth's

conduct, as "we have never upheld the dismissal of a complaint

or indictment for misconduct in the absence of a showing of

prejudice."   Commonwealth v. Hernandez, 421 Mass. 272, 278

(1995).   Teixeira has not attempted to make such a showing, nor
                                                                    25


would he be able to do so.   See id. at 279-280 (before

dismissing complaint, trial judge must determine that "the

prosecutor's refusal to disclose [information following

discovery order] 'caused such irreparable prejudice that the

defendant could not receive a fair trial if the complaint were

reinstated'" [citation omitted]).

    Whether some other sanction is appropriate we leave to the

discretion of the Superior Court judge in whose jurisdiction

this case now lies.    See id. at 280 & n.8 (while dismissal with

prejudice not appropriate, case remanded for factual findings

and determination whether "some other sanction" appropriate);

Reporters' Notes (Revised, 2004) to Rule 14, Mass. Ann. Laws

Court Rules, Rules of Criminal Procedure, at 1517 (rule

regarding sanctions "is based on [the] assumption that the trial

court is in the best situation to consider the opposing

arguments concerning a failure to comply with a discovery order

and to fashion an appropriate remedy").

    3.   Conclusion.    The orders requiring discovery in the

Boston Municipal Court are affirmed.   In Teixeira's case, the

matter is remanded to the Superior Court for consideration,

after any hearings that the judge may deem appropriate, whether

a sanction should be imposed on the Commonwealth for its refusal

to obey the Boston Municipal Court judge's order and, if so, the

nature of the sanction.
              26


So ordered.
