Commonwealth v. Barret R. Brooking.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-410

COMMONWEALTH

vs.

BARRET R. BROOKING.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth appeals from an order dismissing a

criminal complaint, without prejudice, for failure to prosecute.

Because the Commonwealth did not preserve its claim that the

exclusion of evidence was an improper sanction for a third

party's failure to provide documents in response to a subpoena,

and because the dismissal without prejudice was not an abuse of

discretion in the circumstances of this case, we are constrained

to affirm.

Background. The Commonwealth filed a criminal complaint

against the defendant charging him with two counts of violating

an abuse prevention order. See G. L. c. 209A, § 7. The

Commonwealth alleged that the defendant violated the no-contact
provision of the order by sending the victim messages using an

electronic money transfer application.

About seven weeks after arraignment, the Commonwealth filed

a motion under Mass. R. Crim. P. 17 (a) (2), 378 Mass. 885

(1979), and Commonwealth v. Lampron, 441 Mass. 265 (2004),

styled as a "motion to compel," requesting that the owner of

money transfer application be ordered to produce certified

copies of the defendant's money transfer requests and

accompanying messages relevant to the prosecution (money

transfer records). After a hearing held on July 20, 2023, a

District Court judge (first judge) allowed the motion and

approved a court order commanding the application's owner to

file the responsive documents with the clerk's office by

September 1, 2023.

At the next scheduled hearing, on September 18, 2023, the

Commonwealth reported that the application's owner had not

responded to the court order, apparently because it required

additional information before it could comply. The Commonwealth

requested additional time to get the records. The first judge

allowed the Commonwealth's request, but noting the defendant's

objection,1 gave the Commonwealth a "short date" for discovery to

1 The defendant did not lodge a specific objection, but did
state that "if the Court was going to allow" the Commonwealth's
request for a continuance, then he "would ask for the

2
be completed. The judge ordered that all discovery be completed

by October 31, 2023, and if the money transfer records had not

been produced by then, the Commonwealth could not use them at

trial. The Commonwealth did not object. A final pretrial

hearing was scheduled for November 1, 2023.

At the pretrial hearing, held before a different District

Court judge (second judge), the Commonwealth reported that the

money transfer records still had not been produced and again

requested additional time. The second judge noted that the

first judge had set "a firm compliance date," after which these

records could not be used at trial. As the second judge was not

inclined to retract the first judge's order, she asked the

Commonwealth whether it could proceed to trial without the money

transfer records. The prosecutor answered that the Commonwealth

could not proceed because it would become "a he said, she said

case." Referring to screen shots of the messages from the

defendant that the victim had provided, the prosecutor added

that "we could not prosecute . . . if those records are excluded

in their uncertified form." This comment appeared to be in

response to an earlier statement made by defense counsel, who

said the first judge had ruled "that the uncertified screen

Commonwealth's discovery to close on that next date." The judge
characterized the defendant's position as an objection to the
continuance.

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shots of the allegedly violating [money transfer application]

messages would not be admissible." The prosecutor further

stated that the Commonwealth was not inclined to nolle pros the

case and asked that any dismissal be without prejudice.

The second judge found that because the money transfer

records had not been produced by the compliance date, "[t]he

records were deemed to be excluded by this Court on a previous

date based on that noncompliance." Specifically noting that the

Commonwealth had not been "dilatory" and had done its "earnest,

level best to obtain" the documents, the judge dismissed the

case, without prejudice, for lack of prosecution. The dismissal

was entered on the docket on November 2, 2023. Rather than

prosecuting the case anew, as the order of dismissal without

prejudice permitted, the Commonwealth filed a notice of appeal

on November 29, 2023.

Discussion. The Commonwealth's principal claim on appeal

is that the District Court judges erred or abused their

discretion by closing discovery and imposing the sanction of

exclusion based on the application owner's failure to timely

comply with the subpoena. The Commonwealth makes several

arguments why the sanction was wrong: that the sanction of

exclusion is a remedy for discovery violations by the parties

under Mass. R. Crim. P. 14 (c) (2), as appearing in 442 Mass.

1518 (2004), not for third parties' violation of orders issued

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under Mass. R. Crim. P. 17 (a) (2); that the sanction of

exclusion was unwarranted where the defendant was not prejudiced

by the delay in obtaining the money transfer records; and that

excluding the records was tantamount to dismissal with

prejudice. While some of these arguments may be compelling, the

Commonwealth did not make any of them at the trial level.

As a general rule, an appellate court will not reverse the

decision of a trial judge based on arguments raised for the

first time on appeal. See Commonwealth v. Yasin, 483 Mass. 343,

349 (2019); Commonwealth v. Leslie, 477 Mass. 48, 58 (2017);

Commonwealth v. Bettencourt, 447 Mass. 631, 633 (2006). "Prompt

objections by parties allow judges to cure any defects in the

proceedings when they occur." Commonwealth v. Andrade, 481

Mass. 139, 141 n.2 (2018). The Commonwealth did not raise any

of the arguments contained in its brief when the first judge set

a compliance date and said that the money transfer records would

be excluded after that date, nor did it raise any of these

arguments when the second judge stated her intention to enforce

the first judge's ruling. The Commonwealth's only response was

to ask for more time. We are not inclined to depart from the

"fundamental principle of appellate review that a prompt

objection at trial is a prerequisite to the presentation of an

issue for appellate review." Yasin, supra at 348-349, quoting

Andrade, supra at 141-142. Accordingly, we proceed on the

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assumption that the sanction of exclusion of the money transfer

records at trial on the complaint was proper.

The Commonwealth's requests for additional time arguably

preserved a claim that the second judge abused her discretion by

denying a further continuance and dismissing the case instead.

"Where a judge dismisses a criminal complaint without prejudice,

the judge's decision shall be upheld absent an abuse of

discretion." Commonwealth v. Butler, 87 Mass. App. Ct. 183, 187

(2015), quoting Commonwealth v. Gardner, 467 Mass. 363, 368

(2014). Here, before dismissing the case, the judge gave the

Commonwealth the opportunity to proceed without the money

transfer records. The Commonwealth declined to go forward --

not because it would have been unable to prove its case, but

because the prosecutor judged the case too weak to go forward on

just the victim's testimony. Rather, to preserve its ability to

go forward in the future, the Commonwealth asked the judge to

dismiss the case without prejudice, which she did. See

Commonwealth v. Anderson, 402 Mass. 576, 579 (1988) (dismissal

without prejudice allows Commonwealth to "seek fresh complaints

and begin the process of prosecuting the defendant anew");

Commonwealth v. Pimentel, 99 Mass. App. Ct. 597, 600-601 (2021)

(where Commonwealth is unable to proceed due to absence of

witness, dismissing complaint without prejudice allows

Commonwealth to file new complaint and start again).

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We are not persuaded that the dismissal effectively

precluded the Commonwealth from refiling the charges against the

defendant. The second judge made it clear on the record that

the dismissal was not for any misconduct by the Commonwealth,

suggesting that the sanction was specific to the current

complaint, and that the Commonwealth would not be precluded from

introducing the money transfer records in a subsequent

proceeding. See Commonwealth v. Edwards, 491 Mass. 1, 10-11

(2022) (holding that sua sponte dismissal of Commonwealth's case

with prejudice for late disclosure of evidence was abuse of

discretion, but suggesting the dismissal without prejudice would

have permitted Commonwealth to use same evidence, with proper

notice to defendant, at retrial). The discovery sanction here

did not have the same effect as, for example, allowing a motion

to suppress as a sanction for failure to prosecute, as it was

not a legal determination with res judicata effect that would

"forever foreclose[] the Commonwealth from proceeding."

Pimentel, 99 Mass. App. Ct. at 602.2

2 The better practice in the present case, where the
Commonwealth did not have control over the production of the
materials sought pursuant to Mass. R. Crim. P. 17, may have been
to grant a further continuance or to issue further orders to
compel production of the materials. See Mass. R. Crim. P.
17 (a) (2) (authorizing court to "direct that books, papers,
documents, or objects designated in the summons be produced
before the court within a reasonable time prior to the trial or
prior to the time when they are to be offered in evidence").

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Even in the unlikely event that the judges here intended to

preclude the Commonwealth from using the money transfer records,

if later produced by the application's owner, to prosecute a new

complaint, nothing precluded the Commonwealth from going forward

with the victim's testimony supplemented by her own screen shots

of the defendant's communications. Although the prosecutor and

defense counsel seemed to assume that the first judge had ruled

the victim's screen shots to be inadmissible unless certified,

no such order appears on the docket or in the transcript of any

hearing. Moreover, there is no basis in law for such a ruling.

If properly authenticated in court, screen shots of cell phone

communications and social media posts are admissible. See

Commonwealth v. Gonsalves, 99 Mass. App. Ct. 638, 641-642

(2021); Commonwealth v. Meola, 95 Mass. App. Ct. 303, 307

(2019).3

That notwithstanding, in view of the Commonwealth's failure to
object to the first judge's order, we cannot say that either
judge abused her discretion.

3 Certification is a prerequisite for the authentication of
certain records delivered to the court by third parties. See,
e.g., G. L. c. 233, § 79 (hospital records); G. L. c. 279, § 79J
(business records). Had certified copies of the money transfer
records been produced, they would be considered authentic
without the need to call a witness from the application's owner.
But see Commonwealth v. Lehan, 100 Mass. App. Ct. 246, 256
(2021) (certification under G. L. c. 233, § 79J, overcomes an
authenticity objection, but not a hearsay objection).

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Because the Commonwealth declined to proceed without the

money transfer records, and because the judge's decision to

dismiss the complaint without prejudice did not preclude the

Commonwealth from going forward on a new complaint, we cannot

say that the judge's decision to deny a further continuance was

"'a clear error of judgment in weighing' the factors relevant to

the decision, such that the decision falls outside the range of

reasonable alternatives." Butler, 87 Mass. App. Ct. at 187,

quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Order dismissing complaint
without prejudice affirmed.

By the Court (Massing,
Neyman & Wood, JJ.4),

Clerk

Entered: April 25, 2025.

4 The panelists are listed in order of seniority.

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