COMMONWEALTH OF MASSACHUSETTS TRIAL COURT OF THE COMMONWEALTH SUPERIOR COURT DEPARTMENT INDICTMENTS: 88197 88386 COMMONWEALTH V. RICHARD J. SPROULES AFFIDAVIT OF ROGER D. M.D. I, Roger D. Weiss, hereby depose and say: 1. I am.a physician licensed to practice medicine in the Commonwealth of Massachusetts and am a board I am.Director of the Alcohol and Drug Abuse Treatment Center at McLean HOSpital in Belmont, massachusetts, and, in that capacity, I am on the faculty of the Harvard University Medical School. I have specialized in the research and treatment of drug and alcohol abuse, particularly cocaine addiction, and I have published a number of books and articles on that subject. 2. Pursuant to an order of Jpstice Charles E. Black of the Brockton District Court, I examined Richard J. Sproules on the morning of October 30, 1989, for the purpose of assessing his possible addiction to controlled substances and/ or alcohol and to determine whether he was then a person who could benefit from treatment. On the basis of'that examination, I formed the opinion that Mr. Sproules was drug dependent and recommended that he be admitted to treatment at McLean Hospital on an in-patient basis. A copy of the report which I submitted to the Court is attached hereto. 3. Mr. Sproules ?was admitted ?to ?treatment at McLean Hospital on October 31, 1989. The ensuing tests of severe, continuous cocaine dependence and related dependency upon alcohol. A copy of the Admission Note is attached. 4. Mr. Sproules was discharged on December 6, 1989 following thirty?five days of intense treatment for cocaine and alcohol addiction. This treatment, which took place in a secure setting with twenty-four hour per day supervision, included individual three times per week, group family sessions, educational sessions, expressive therapy, vocational rehabilitation counselling, and participation in Alcoholics Anonymous and Narcotics Anonymous self help groups. A copy of the Patient Discharge Summary is attached. 5. In my medical opinion, several factors led to Mr. Sproules' addiction to cocaine and alcohol. He Ill exhibited both strong and biological predispositions towards dependency. As a consequence, what began as intended experimentation with cocaine grew rapidly into a serious addiction in response to the presence of significant emotional distress related primarily to his command responsibilities within the police department. Finally, virtually unfettered access to significant quantities of cocaine prodUCed a severe craving. Such a "sudden addiction" as Mr. Sproules experienced is not uncommon, particularly in the context of such great drug availability. 6. Although during the course of his treatment Mr. Sproules did not exhibit physical of withdrawal and required no medical detoxification, his physiological response was typical of cocaine dependency which typically involves severe cravings but not a physical dependency. Notwithstanding his predisposition to drug and alcohol dependence, Mr. Sproules responded readily to treatment and successfully completed the rigorous in- patient phase of the McLean program. In order to ensure the best prognosis for complete and long term rehabilitation, however, Mr. Sproules should continue to participate in out?patient rehabilitation programs to ensure that he continues to remain drug free. Most importantly, he should continue to participate in regular meetings of Alcoholics Anonymous and it is recommended, as well, that he become regularly involved in a support group, typically involving six to ten persons. While Alcoholics Anonymous provides a significant source of strength and discipline, which is necessary to maintain his resolve against future consumption of alcohol and/or drugs, a support group would concurrently focus on the characteristics which.relate most directly to his vulnerabiliga to addiction. :Dl addition, Mr. Sproules ought also to submit to periodic supervised urine toxicology screens to ensure that he remains continuously drug free. SIGNED UNDER.PAINS.AND PENALTIES OF PERJURY THIS THE DAY OF AUGUST, 1990. (kph ng. Rog??_D. Weiss, M.D. CLASS g, to wit: COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT DEPARTMENT INDICTMENT NO. PLYMOUTH, SS. COMMONWEALTH VS. RICHARD J. SPROULES INDICTMENT LARCENY OF A CONTROLLED SUBSTANCE (Class - Cocaine) GENERAL LAWS CHAPTER 94C, SECTION 37 At the SUPERIOR COURT, begun and holden at PLYMOUTH, within and for the COUNTY of PLYMOUTH, on 1989 THE JURORS for the Commonwealth of Massachusetts on their oath present that: November 6, RICHARD SPROULES of BRIDGEWATER in the COUNTY of PLYMOUTH, commencing on or about 1984 and until on or about October 24, 1989, and on divers occasions between the aforeSaid dates at BROCKTON in the COUNTY of PLYMOUTH, did steal a controlled substance in COCAINE, the property of Brockton Police Department, being a person or entity authorized to possess the same. A TRUE BILL Nssistant Attornef?twnh On this 6th day of Nbva?mr 1989, this indictment was returned and presented to said Superior Court by the Grand Jury, and ordered to be filed and filed. Eki?iog?. ATTEST: 2- 19316 - 1 was]; .L COMMONWEALTH OF MASSACHUSETTS TRIAL COURT OF THE COMMONWEALTH SUPERIOR COURT DEPARTMENT INDICTMENTS: 88197 a 88386 COMMONWEALTH v. RICHARD J. SPROULES MEMORANDUM IN SUPPORT OF MOTION FOR REVISION OR REVOCATION OF SENTENCE INTRODUCTION at a hearing held before the Court on June 28, 1990, the defendant entered pleas of guilty to five indictments returned by the Plymouth County Grand Jury. The two indictments which are the subject of this motion, 88197 and 88386, charged the defendant respectively with larceny of cocaine and embezzlement by a municipal officer. ?With. respect ?to each, the Court imposed sentences to State Prison for periods of from seven to ten years. The Defendant files this memorandum in support of his request that the sentences on the above captioned indictments be revised to a commitment to Concord Reformatory for a period of ten years, or, alternatively, that the sentences to State Prison terms be revised ?3 to periods of from five to seven years. The primary justification for the requested revision is to permit the defendant to render the defendant eligible for participation in Alcoholics Anonymous and other alcohol and drug abuse rehabilitation. programs and 'to Probation Service. participate in authorized work release program through which he can contribute to the support of his wife and children. ARGUMENT 1. Factors Justifying Mitigation of Sentence: Prior to the disposition of the case, a pre-sentence investigation was performed by the Plymouth County Superior Court A six page report prepared by the Probation Officer assigned to the case was first provided counsel minutes before the hearing: From aadetailed review of the probation report (which. was not. possible to conduct. prior to the disposition hearing) and a videotape of the proceedings (a transcript is not yet available though. requested.?during' the 'week following' the hearing), it is evident that the Court did not have before it a significant information which would have justified mitigation of the sentence ultimately imposed. Although requesting an opportunity to address the Court.following the Defendant's remarks, Defendant's counsel did not have an opportunity to be heard in support of the defense's recommendation as to diaposition of the case. It is therefore appropriate that this information be brought ms .p to the Court's attention at this time. h. Circumstances of the Offenses: As the testimony before the Grand Jury and the reports of Dr. Weiss and the records of McLean Hospital unequivocally demonstrate, Richard Sproules developed a severe addiction to cocaine and, later, alcohol, while chief of detectives at the Brockton Police Department. The Defendant did not set out deliberately to become a narcotics abuser. He did, however, in a moment of weakness, experiment with cocaine at a point in his life where he was depressed and having difficulty with dealing with the stress of command responsibility. were overwhelming . the drug The initial effects of Immediately he experienced a tremendous relief from the strain and depression which had been tormenting him. The early effects combined with what the McLean Hospital diagnosed as an inherent biological and predisposition to addiction and a readily available source of cocaine to produce an irrepressible and craving. Despite an intensive six month investigation by the Grand Jury, no evidence was developed before the Grand Jury other than to establish that in stealing cocaine from the Brockton evidence room, the Defendant sought only to satiate the craving which was the product of his addiction. While the fact does not excuse his conduct, the evidence before the Grand Jury also indicates that there was no financial motive for the Defendant's use of cocaine. He never distributed cocaine to others, never sold any drugs. Again, the thefts were .. u?w . ask?n 1d a merely a consequence of his own addiction. Although not the subject of this motion, the offenses involving interference with witnesses should be emphasized as not involving threats of either violence or retribution, as is more typically the pattern in most instances. Neither were the acts the product of a corrupt intent. Here there was present no deliberate attempt to subvert. the ends of justice. Instead, the acts represent the efforts of a man deeperate to conceal the fact of his of his addiction whose circle of options was growing increasingly tight. With respect to the charge of embezzlement, the defendant admitted that he unlawfully expended funds which had been seized from crime suspects, but which had not been made subject to a forfeiture order. The fact that the Defendant expended those funds on valid police business does not alter the fact that he had no lawful authority to do so. The fact, remains, however, that the evidence before the+Grand.Jury never established that the Defendant Nor has the "stole" the funds for his personal aggrandizement. Defendant ever admitted such acts, despite cross examination before the Grand Jury on this point. with respect to the charge of embezzlement, the government's case comprised two propositions: first, that funds in the amount of approximately' $173,531.92 were charged to the defendant's custody and control over the six year period covered in the indictment; and, and, secondly, that he was unable to account for nearly $70,000 of that amount. The defendant has freely admitted the first.propositionm ?However, in.reaching the second conclusion, the government. has failed 'to accept ?the ?validity of? records submitted to the City Treasurer documenting the expenditure of $49,234.00 in so?called "crime suppression funds." While the government investigators are entitled to their subject opinion, there is little evidence to support the conclusion that the records were not worthy of acceptance. In contrast, the Defendant has steadfastly and consistently maintained that all funds which were the subject of "crime suppression" vouchers were spent for valid departmental purposes. If the government had accepted the validity of those records, the amount of money ?unaccounted for" would be substantially reduced and would have been adequately explained by the fact that two years of expenditure records could not be located. Again, while the point here is not to unfairly minimize the seriousness of the offenses, it is equally unfair that the Court be left with impression that the facts as they are known demonstrate that the funds to his personal use. (While the prosecution may point to one or two instances where the expenditure records indicate that funds were used to purchase "champagne and lobsters," the purchases constituted wedding gifts for a highly productive informant.whose assistance to the department had led to many arrests and convictions over a number of years.) After an intense investigation, during the course of? which ?the Defendant's financial circumstances were analyzed in depth, the evidence developed makes clear that the flin- nmeam a Defendant did not steal public funds for his personal benefit. While the facts do justify a conviction of guilty, they do not point to the degree of moral and legal culpability justifying imposition of sentence which is close to the maximum allowable under the law. B. Extensive Cooperation With the Investigation: From the day of his arrest, the Defendant cooperated with the authorities in the investigation of this case. He admitted the facts of his addiction and the thefts to Lieutenant Garrison in full detail. -Thereafter, he consented to a seaICh of his home which was conducted by investigators on the night of his arrest. He voluntarily turned over records and funds in his possessioni He and his counsel met frequently with the investigators to answer their questions. And he waived his Fifth Amendment privilege against self incrimination and testified at length before the Plymouth County Grand Jury, answering virtually every question put to him over the courSe of several days of appearances. The record of his cooperation evidences a sincere attempt on the part of the Defendant to accept responsibility for his own wrongdoing as well as to set the record straight with respect to the allegations against him. Despite this extraordinary undertaking, it appears not to have been taken into consideration by the Court in determining the Defendant's sentence. 0. History of Contributions to others: As the attached letters of commendation and support eloquently reveal, the Defendant has a well established record of substantial contributions to the community in which he lived and worked. Not only was a highly dedicated, professional, and successful police officer, he established a well earned reputation of community service, often assisting others in need of help or encouragement. As the enclosed letters indicate, he man made a difference in the lives of many others: As a pioneer in the drug education effort in the schools and among neighborhood youth groups, he was an eloquent spokesman in the effort to educate the youth of the community to the dangers of drugs. He helped start the first methadone maintenance program in the City of Brockton. He was and remains dedicated to helping young people grow and "Dick has been a develop. As Attorney Kevin Reddington stated, soccer coach supreme for the Town of Bridgewater and has volunteered innumerable hours in the training and coaching of children over the years. Bridgewater has a soccer program for children equal to none across the state." With officer Richard Saccocia he helped start a trust fund for a Bridgewater girl who suffered burns over 45 percent of her body. He helped numerous others to confront their own problems with drugs and to seek professional help when it was necessary. Officer Richard Saccocia: "he has helped troubled officers, as well as myself, in times of need when ever we had problems.? Harold Owens, a former drug abuser and now a successful businessman and member of chamber of commerce, stated of his 1972 arrest by Richard Sproules, . .probably saved my life. . . In time, he finally I M. reached me; thank god for Dick Sproules." Thomas Mather successful business man, in Brockton, stated, "Due to Dick's help and advice throughout the years of my problems with drugs, I have grown.to know Dick and his family personally and professionally. I am proud to say that without all his help and advice and guidance he has given me throughout the years, I honestly feel that I wouldn't be where I am today." Others echo a similar theme: Arthur and Irene Squires wrote: "through the years, we have never seen or heard Dick refuse to help anyone in trouble or deny anyone a second chance. We know of many young people he has taken under his wing and set them on a better course in life.? ?whenever Daniel Clifford of Bridgewater wrote: a friend, acquaintance, or even a stranger would ask for help, Dick would always be available . . . . Without regard to how difficult his schedule had become, or how much pressure he would be under from his work, Dick would always take time to help people who needed him. . .It is his compassion for people that has prompted me to write this letter more than anything else.? Dick Sproules constantly demonstrated compassion for others, even those 1whom he arrested. Officer Michael Mather, of the Brockton Police Department, wrote: "Most of all, he had respect for people as human beings. Being a police officer can make you cold and aloof, but not Dick, he is one of the most compassionate people I know." Sproules treated others with dignity and taught them.to do the same. While no one requested.that this Court not impose a suitable Alt-Hana. .. punishment, a theme consistently echoed throughout the letters called for the Court to recognize the many contributions which this man had made to the community. As Arthur McClaren wrote, . . but in sentencing Richard, Your Honor, I hope you will weigh the good things he has done in his career, along with those bad things." D. Rehabilitation: In sentencing, a Court is constrained to consider not only the goals of punishment, but considerations of rehabilitation as well. Once admitting his addiction, the Defendant cooperated immediately in seeking rehabilitation. He voluntarily committed himself to McLean Hospital's Alcohol and Drug Abuse Treatment Center where he completed a rigorous six week program. While there, he continued to assist others as well as himself, as is evidenced by the letter signed by members of the Appleton Cocaine Therapy Group of McLean Hospital, in which the Defendant is described as, "an inspirational member of our group. Following his release from in?patient treatment, Richard continued with out-patient therapy and Alcoholics Anonymous, making in 180 meetings over 180 days. His commitment to self rehabilitation is exemplary, and again, worthy of the Court's consideration. II. Present circumstances: Notwithstanding his success in completing the McLean treatment program, Richard Sproules faces a significant challenge in the years ahead if he is to remain drug and alcohol free. His sentence 4_ .i . Vi i} ought take into consideration a need for continuing drug therapy involving routine participation in Alcoholics Anonymous and group counselling sessions. Neither of these programs are currently available, given the dictates of safety considerations which must govern so long as he remains in a secure facility. One major objective of this motion, is to render the Defendant eligible for reclassification to a minimum security facility, where he will be able to participate in such programs without concern for his physical safety. Moreover, until the Defendant is within eighteen months of parole eligibility, he will not be permitted to engage in a work program through which he can contribute to the support of his family; His family has already suffered, not only emotionally} but financially as a result of the events which put Richard Sproules in prison. Suspended without pay immediately following his arrest, Sproules lost his source of income and may ultimately lose his accumulated retirement benefits. A revision of the sentence as requested herein would result in his becoming eligible to participate in a work?release program through which he can contribute to the support of his wife and family and thereby help preserve not only a home to return to upon the conclusion of his sentence, but some hope for the future as well. CONCLUSION Not only are there many aspects of this case which support mitigation of sentence, as rehabilitation remains a central goal in sentencing, a revision of the Defendant's sentence is justified 10 where it is necessary to promote that end. Richard Sproules recognizes that he has, by his actions, breached not only a public trust, but many personal ones as well. It is one of the great ironies, demonstrated by this case, that one of the perils of public service and leadership is that the public servant and leader tend to be judged more for their failures and transgressions. However, justice.does not demand that result? Rather, justice requires that this man, like all others, be judged, not by his criminal acts alone, but by the contributions which he has made to his community and society as a whole. Richard Sproules deserves the mercy of this court, because he gave so much of his own to others. He deserves the compassion of this court, because he showed so much to others. A revision of the sentence to promote his rehabilitation is justified at least because he helped so many others achieve theirs. While the acts of which the indictments speak deserve condemnation, the man who committed them does not. The Defendant requests no more than what others have sought on his behalf. No one has put it more then.Michae1 Mather, whose letter is attached: ."My family and I feel that Dick is worthy of the court's compassion. We beg you to consider the whole person; husband, father, son, friend, hard working police officer and soccer coach to many you people. This gentle 11 {a man has demonstrated his worth to our community." MAHONEY, HAWKES E: GOLDINGS 40 Rowes Wharf Boston, Massachusetts 02110 (617) 439-7600 Date: August 27, 1990 12 I/ijg?? COMMONWEALTH OF MASSACHUSETTS PLYMOUTH, SS. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CRIMINAL ACTION NO. 88197 COMMONWEALTH OF MASSACHUSETTS, V. RICHARD J. SPROULES, Defendant 2% (Pursuant to G.L. s.10) In accordance with G.L. c. 111E, 3.10, the Court, having determined that the Defendant, Richard J. Sproules, is a drug dependent person who would benefit from treatment, hereby Orders that: The Defendant, Richard J. Sproules, be assigned to the Alcohol and Drug Abuse Treatment Center, McLean Hospital, Belmont, Massachusetts for enrollment and participation in an in?patient drug treatment program and such program of after?care as determined by the Administrator of said treatment facility. That the proceedings with reapect to the above captioned indictment be stayed during the pendency of the defendant's participation in the treatment program to which he is assigned. it as COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT DEPARTMENT APR 1 1 1331! OF THE TRIAL COURT INDICTMENT NOS. 88197, 88296, 88299, 88300, 88386 PLYMOUTH, SS. COMMONWEALTH OF MASSACHUSETTS, v. RICHARD J. SPROULES, Defendant I \l WIT . Please note the Withdrawal of Appearance of the undersigned counsel with respect to the above?captioned indictments. I have been notified by Attorney Jordan Ring of?Ring, Rudnick Grefe, that he now represents Mr./ that Mr. Ring file an Appearance i Bruce 8: Edmands Mahoney, Hawkes Goldings 40 Rowes Wharf Boston, Massachusetts 02110 (617) 439?7600 MAHONEY, HAWKES 8c GOLDINGS ATTORN EYS AND CDUNSELLORS AT LAW CHARLES Mom MomMGommes 4o ROWES WHARF 53?? 0m Elem-m Dam Amos: Mm Pm BOSTON, MASSACHUSETTS 02110 (imam MW 01980 Fmons Anon Gum mom 1617} 489-7600 counszn. JomrE Em (617) 737?3521 7 33?? JomiEFLoon ?m?l?mml? April 9, 1991 Clerk Criminal Plymouth Superior Court Court House 72 Belmont Street Brockton, Massachusetts 02401 RE: CommonWealth v. Richard J. Sproules Indictment Nos. 8812]. 88296. 88299; 88309 and 88385 Dear Sir/madam: Enclosed for filing please find the following in regard to the above?referenced matter: 1) Withdrawal of Appearance Thank you for your anticipate Enclosure cc: Jordan Ring, Esq. COMMONWEALTH OF MASSACHUSETTS PLYMOUTH DISTRICT OFFICE OF THE DISTRICT ATTORNEY MAIN OFFICE: :32 BELMONT STREET P. 0. Box I665. BROCKTON. MA 02303-1665 TEL. (508) 584-8120 TIMOTHY J. CRUZ FAX: (508) 586-3578 DISTRICT ATTORNEY December 26, 2001 Honorable Richard D. Chin Brockton Superior Court 72 Belmont Street Brockton, MA 02301 RE: Commonwealth V. Richard I. Sproules Dear Judge Chin, I am in' receipt (if a copy of a?letter directed to'you dated December 20, 2001 concerning the above referenced matter: - - . My review of this matter found that the Commonwealth ?led a motion in Opposition to Defendant?s Motion for Post Conviction Discovery in 1995 requesting the defendant?s motion be denied Without a hearing. Accordingly, it is my understanding, upon information and belief, that the Plymouth County District Attorney?s of?ce has not been party to any agreement that a hearing on this motion be held off. It is the Commonwealth?s position that the court should defer any action on this motion to Chief Justice Suzanne V. DelVecchio, who presided over the defendant?s plea, is aware of this motion, and as such is familiar with the complex facts and circumstances surrounding this case.? Additionally, if and when the defendant formally ?les a motion for anew trial, ?said motion should be heard by Judge DelVecchio, who was the trial judge. I appreciate your consideration of this matter and will provide the Court with any additional information that would be of assistance. Sincerely, 04;;ch Timothy J. Cruz District Attorney Plymouth County Enc. CC: Hon. Suzanne V. DelVecchio, Chief Justice Superior Court Kevin J. Reddington, Esq. OFFICE OF THE DISTRICT ATTORNEY DISTRICT 32 BELMONT STREET P. 0. Box 1665 anocxron. MA 02403 .. xw . COMMONWEALTH OF MASSACHUSETTS PLYMOUTH, SS SUPERIOR COURT INDICTMENT NOS. 8819697, 88199-230, 89236 COWONWEALTH V. RICHARD J. SPROULES OPPOSITION TO MOTION FOR POST CONVICTION DISCOVERY Five years after the defendant pled guilty to ?ve felony indictments charging him with a monumental violation of the public trust, he new ?les a post conviction motion for discovery alleging that "this discovery is necessary to a full, fair investigation prior to the ?ling of a Motion to Vacate Guilty Plea in accordance m'th the applicable rules of criminal procedure" (emphasis supplied). Defendant is, quite simply, mistaken. In the circumstances presented to this Court, the defendant has no right to post conviction discovery. Mass. R. Crim.?P. 30(c)(4) is the applicable rule goveming defendant's request for post conviction discovery. Under this rule, a defendant has no right to discovery prior to ?ling a motion for new trial or motion to vacate a guilty plea". summarily deny defendant's motion for discovery wi instead I 5 Ir OFFICE or THE DISTRICT ATTORNEY PLYMOUTH DISTRICT 32 IELHONT STREET P. o. no: less snecxron. MA 02403 DA Rule 30 provides defendant's "exclusive vehicle for post conviction relief." Leaster v. Commonwealth, 385 Mass. 547, 549 (1982). Pursuant to Mass. R. Crim. P. a defendant is not entitled to any post conviction discovery unless and until he has ?led a motion for post conviction relief accompanied by af?davits establishing a prima facie case for relief. commonwealth v, Nicholson, 20 Mass. App. Ct. 9, ll n.1 (1985) (moving party must establish prima facie case for relief prior to discovery). "Obviously, the provision that the af?davits of the defendant must establish a prima facie case is to prevent the defendant from engaging in a ?shing expedition." Smith, Criminal Practice and Procedure, 2079, p. 345 (1983). The defendant is not entitled to the court's assistance in conducting an open?ended investigation in hopes of ?nding grounds for a new trial. WM 410 Mass. 680, 684 (1991) (a defendant is not entitled to funds for a post conviction investigation even though it may make supporting a motion for new trial more dif?cult). Thus, after a defendant is convicted, he is only entitled to discovery after he has ?led a motion for post conviction relief and attempted to support the motion with affidavits establishing a prima facie ground for relief. At that point, .the Commonwealth can argue that no such ground for relief has been established or that the requested discovery is not material to any such ground. It only after the court is satis?ed that a prima facie case has been established that the court has the discretion to grant discovery. See W, 385 Mass. 190, 194 (1982) (discovery motion properly denied when no prima facie case for relief OFFICE or THE DISTRICT ATTORNEY PLYMOUTH DISTRICT 32 BELMONT STREET 9. o. so: was snocxrou. MA 02403 DA 10! established); Commonwealth v, Stewa?, 383 Mass. 253, .261 (19'81) (once prima facie case established, extent of "appropriate" discovery is injudge's discretion). In the instant case, defendant requests this Court's assistance in conducting an investigation into the amounts of monies actually stolen by defendant. Over ?ve years ago, on June 28, 1990, defendant pled guilty to the embezzlement indictment and all other indictments. This Court accepted defendant's guilty plea ?nding the "plea with regard to each of these indictments is made voluntarily with knowledge of its consequences." (Plea Transcript pgs. 63-64). The court should not, absent a proper showing by defendant in conformity with the Rules of Criminal Procedure, sanction defendant's ?shing expedition. submitted, 72.7.3-6 PAUL C. DAWLEY Assistant District Attorney Plymouth District WW FRANK M. GAZIANO Assistant District Attorn Plymouth District SPC0305 tn. /7 BROCKTON SUPERIOR COURT INDICTMENTS NOS. 88197, 88296, 88299, 88300, 88836 COMMONWEALTH OF MASSACHUSETTS PLYMOUTH, SS. FILED . COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT DEPT. OF THE TRIAL COURT PHMOUTH COUNTY COMMONWEALTH JAN 8 2002 an a? Wm PLERK DEFENDANT ?8 MOTION FOR DISCOVERY RICHARD J. SPROULES The defendant, Richard J. Sproules (?defendant?), pled guilty over eleven years ago to ?ve felony indictments charging him with Ilarceny of controlled substances, attempt to procure another to commit perjury, intimidation of a witness (two counts), and fraud or embezzlement by a city of?cer. He now moves for postconviction discovery, apparently in preparation for an anticipated ?ling of a motion to vacate his guilty plea. The Commonwealth opposes the motion. Rule 30 provides the ?exclusive vehicle? for the defendant?s motion for postconviction relief. Leaster V. Commonwealth 385 Mass. 547, 549 (1982). See Mass. R. Crim. P. 30. Before posteonviction discovery may be ordered, however, the defendant must establish ?a prima facie case for relief.? Commonwealth v. Tague, 434 Mass. 510, 519 (2001). See Mass. R. Crim. P. Commonwealth v. Benne?, 39 Mass. App. Ct. 531, 535 n.6 (1995). Such a prima facie showing must be supported by af?davit. Mass. R. Crim, P. 0 9/1 assertions based upon mere information and belief do not satisfy the af?davit requirement 07' rule. See id. Furthermore, the defendant?s assert10ns that the requested dlscovery Will contam The defendant here has failed to meet his burden. In the ?rst instance, his attorney?s A 2 exculpatory material amounts to nothing more than pure speculation and surmise. The defendant is not entitled to the court?s assistance to engage in a ?shing expedition. See Commonwealth v. Dalton 410 Mass. 680, 684 (1991); Smith, ?Criminal Practice and Procedure,? Massachusetts Practice ?2079. Additionally, it is noteworthy that most of the defendant?s allegations in support of his motion appear to concern the indictment for larceny over $250, which was ?led without a change of plea. Finally, a defendant seeking a new trial on the basis of newly discovered evidence, as here, must show that the alleged evidence was unknown to the defendant or hisfher counsel and not discoverable through ?reasonable pretrial diligence? at the time of trial. Commonwealth v. Pike, 431 Mass. 212, 218 (2000). See Commonwealth v. Grace, 397 Mass. 303, 306 (1986); Commonwealth v.-Brown, 378 Mass. 165, 171-172 (1979). The defendant in the case at bar has failed to demonstrate that reasonable pretrial diligence could not have uncovered the purported evidence. The defendant?s motion thus not raising any substantial issue, a hearing is not warranted. See Mass. R. Crim. P. Smith, supra. - .- a. J. in?; ain't-h 2 COMMONWEALTH OF PLYMOUTH,SS A MASSACHUSETTS BROCKTON SUPERIOR COUR NO. J COMMONWEALTH VS. R I C H A R D J. S P R O U L E S DEFENDANT'S MOTION FOR DISCOVERY N o w c o m e s the Defendant, R i c h a r d J. Sproules, a n d respectfully m o v e s t h i s H o n o r a b l e C o u r t f o r o r d e r s p e n d i n g t h e filing o f a M o t i o n t o V a c a t e Defendant's Plea of Guilty and ensuing convictions a n d sentences i m p o s e d thereon as follows; 1.) Defendant requests that this matter b e assigned specially to H o n . S u z a n n e D e l V e c c h i o f o r r e s o l u t i o n from t h i s p o i n t u p t h r o u g h a n d i n c l u d i n g the hearin g o n the M o t i o n to V a c a t e Guilty P l e a ; 2.) P e n d i n g a filing o f t h e M o t i o n t o W i t h d r a w P l e a a n d a h e a r i n g o n the m e r i t s t h e D e f e n d a n t m o v e s this C o u r t for a n o r d e r s e e k i n g d i s c o v e r a b l e materials that are material and relevant to the Defefflant's Motiotf«® W i m S U P ^ C S K T B e t 6f THLtifot mm his p l e a including materials that constitute n e w l y d l s c o v e r q d - ^ ^ e f i K ^ W w i t ; JUN 3 0 &95 CL£R* J A.) C o p i e s o f all d o c u m e n t s , n o t e s , e n v e l o p e s , l o g s , w r i t i n g s and accountings arising out o f the discovery o f a b o x i n an e v i d e n c e l o c k e r a s s i g n e d t o n o o n e w h i c h c o n t a i n e d inter alia; c o p i e s o f r e c o r d s r e g a r d i n g m o n e y , e n v e l o p e s u s e d t o c o n t a i n d r u g m o n e y , all o f w h i c h o n i n f o r m a t i o n a n d belief amount to in e x c e s s o f $ 1 6 0 0 - m o n e y the government asserted the D e f e n d a n t s t o l e w h e n i t c a l c u l a t e d a l o s s o f $ 1 4 7 , 7 7 2 . 0 0 at t h e t i m e o f t h e D e f e n d a n t ' s i n d i c t m e n t , pretrial h e a r i n g s a n d u l t i m a t e c h a n g e o f p l e a . T h i s n e w l y d i s c o v e r e d e v i d e n c e i s material, r e l e v a n t a n d c r i t i c a l t o t h e d e f e n s e i n that, f o r e x a m p l e , o n e o f t h e e v i d e n c e e n v e l o p e s a n n e x e d h e r e t o s h o w s a n initial i n v e n t o r y o f $ 4 4 7 . 0 0 . . . t h e s e are n o t e d t h e r e o n w i t h t h e following; $ 80.00-7/20/87 L T M Noone $100.00-4/22/87 L T M $ 60.00-5/4/87 $160.00-6/2/87 B.) LTM LTM Gomes/Willie? O n June 2 9 , 1 9 9 5 , Martha Kristian, an investigator e m p l o y e d b y the D e f e n d a n t , did a p p r o a c h the said Lieutenant R o b e r t Morrill w h o confirme d that h e did, i n fact, m a k e the notations o n the e v i d e n c e envelope. C.) In h i s Grand Jury t e s t i m o n y , Lt. Morrill w a s o n e o f t h e p r i m e w i t n e s s e s a g a i n s t t h e D e f e n d a n t . H e t e s t i f i e d , inter a l i a , t h a t t h e D e f e n d a n t w a s g i v e n all t h e e v i d e n c e e n v e l o p e s . P . 1 2 7 - " T h e s e w e r e t u r n e d o v e r a l l at t h e s a m e t i m e , t h e s e particula r o n e s . Q A D i d h e ask y o u for the m o n e y s ? Q A: W h y did y o u g i v e t h e m to him? N o , sir, I g a v e t h e m t o h i m . I felt there w a s a p r o b l e m w i t h t h e moneys. I had talked to h i m about it. H e s a i d t h e r e w a s b u t h e h a d c o n t r o l o f it a n d h e w a s h a n d l i n g it a n d I h a d n o n e e d t o k n o w w h a t it w a s a b o u t . (Annexed hereto) D.) Further, L t . M o r r i l l t e s t i f i e d r e g a r d i n g t h e p r a c t i c e o f receiving or taking m o n e y ; Q: Sorry, g o a h e a d ? A: . . . he would account by, b y sending o v e r s l i p s that t h e y u s e d t o s i g n f o r years ago, if y o u received m o n e y y o u w o u l d s i g n f o r it. B u t I d o n ' t k n o w i f t h a t w a s still a p r a c t i c e . I k n o w I d i d n ' t d o it. A n d a n y m o n e y t h a t I g a v e t o m y d e t e c t i v e s t h e y d i d n ' t h a v e t o s i g n for. Q: S o that, s o t h a t i f y o u r e c e i v e d m o n e y from t h e c r i m e s u p p r e s s i o n f u n d s from t h e chief then neither yourself nor the other detectives w o u l d s i g n for that? A: N o w e wouldn't. ( A n n e x e d hereto) 3 . ) T h e D e f e n d a n t further m o v e s b a s e d o n t h i s e v i d e n c e t h a t t h e C o m m o n w e a l t h p r o d u c e all c r i m e s u p p r e s s i o n s l i p s g e n e r a t e d w h i l e t h e D e f e n d a n t w a s c h i e f a n d f o r a t w e n t y ( 2 0 ) y e a r p e r i o d p r i o r t h e r e t o . It i s e x p e c t e d t h a t t h i s e v i d e n c e w i l l b e e x c u l p a t o r y a n d w i l l a l s o fly i n d i r e c t c o n t r a d i c t i o n t o t h e t e s t i m o n y o f Lt. M o r r i l l a n d t h e o t h e r i n v e s t i g a t o r s . 4.) L t . M o r r i l l r e f e r s t o n o t e s that h e h a d from d e t e c t i v e ( a n n e x e d hereto). T h e s e , too, are clearly exculpatory and should h a v e b e e n p r o v i d e d the d e f e n s e . It i s a x i o m a t i c t h a t s u p p r e s s i o n o f e x c u l p a t o r y e v i d e n c e i s a b a s i s f o r a n e w trial. 5.) D e f e n d a n t m o v e s for an order directing the K e e p e r o f th e R e c o r d s o f t h e B r o c k t o n C i t y C o u n c i l t o p r o d u c e all r e c o r d s o b t a i n e d b y t h e a f o r e s a i d c o u n c i l o r its s u b c o m m i t t e e p e r t a i n i n g t o c h e c k s t h a t w e r e a l l e g e d l y c a s h e d b y t h e D e f e n d a n t o r i n d i v i d u a l s at h i s direction. T h i s e v i d e n c e w a s o b t a i n e d b y s u b p o e n a p o w e r o f said council during hearings under color o f l a w a n d are r e l e v a n t a n d m a t e r i a l t o t h e i n v e s t i g a t i o n prior t o t h e filing o f h i s M o t i o n t o V a c a t e the P l e a s o f Guilty. 6.) D e f e n d a n t a v e r s that t h e C o m m o n w e a l t h a l l e g e d a t o t a l "theft" o f $ 1 4 7 , 7 7 2 . 0 0 . I n t h e e v e n t t h e s u p p r e s s i o n s l i p s a r e a c c o u n t e d for, it i s a l l e g e d that the C o m m o n w e a l t h n o t e d $ 4 9 , 2 3 4 . 0 0 i n s u c h slips, t h e n there are unaccounted for funds i n the amount o f $ 9 8 , 5 3 8 . 0 0 . After the $ 1 6 6 2 in e n v e l o p e s that w e r e r e c e n t l y d i s c o v e r e d that c l e a r l y s h o w t h a t o t h e r s u t i l i z e d t h e m o n e y s from t h e e n v e l o p e s , n o t t h e D e f e n d a n t a s t h e g o v e r n m e n t a l l e g e d , t h e n t h e r e i s a n a m o u n t o f $ 9 6 , 8 7 6 . 0 0 i n f u n d s u n a c c o u n t e d for. 7.) D e f e n d a n t m o v e s for an order c o m p e l l i n g the C i t y o f B r o c k t o n t h r o u g h i t s a u d i t or l a w d e p a r t m e n t t o p r o v i d e all r e c o r d s , d o c u m e n t s , correspondence, memoranda pertaining to the submission o f a b o n d e d loss to the City's b o n d i n g c o m p a n y as w e l l as payment m a d e thereon. 8.) D e f e n d a n t further m o v e s f o r all r e c o r d s , d o c u m e n t s , n o t e s a n d r a w data u p o n w h i c h the efforts o f D e t e c t i v e H o w e o f t h e M a s s a c h u s e t t s State p o l i c e c o m p i l e d the report referred to as "The H o w e R e p o r t . " T h i s is m a t e r i a l a n d n e c e s s a r y t o a full a n d fair i n v e s t i g a t i o n p r i o r t o t h e filing o f h i s M o t i o n t o W i t h d r a w h i s p l e a s i n that t h e D e f e n d a n t h a s r e v i e w e d h i s diary, r e c o r d s a n d d o c u m e n t s p e r t a i n i n g t o t h e u s e o f m o n e y s t a k e n the e v i d e n c e e n v e l o p e s and g i v e n t o detectives for "controlled b u y s , " from informants and other clandestine activities as w e l l as records, receipts and n o t a t i o n s p e r t a i n i n g t o t h e u s e o f s u c h m o n e y o b t a i n e d from e v i d e n c e e n v e l o p e s and/or crime suppression funds for the purchas e o f tools, electronic e q u i p m e n t , gifts, t r i n k e t s , d i n n e r s , l u n c h e o n s for p o l i t i c i a n s a n d o t h e r dignitaries, photographs , flowers, surveillance equipment, car rentals, a u t o m o t i v e s u p p l i e s a n d t e l e p h o n e p u r c h a s e s for t h e d e p a r t m e n t , d e t e c t i v e s a n d o t h e r s , all for a v a l i d , a p p r o p r i a t e , l a w f u l a n d r e a s o n a b l e a n d n e c e s s a r y p u r p o s e , n o n e o f w h i c h w e r e t o benefit the D e f e n d a n t , a s alleged. It i s a l l e g e d t h a t after literally m o n t h s o f p a i n s t a k i n g r e c o r d r e c o n s t r u c t i o n a n d r e v i e w o f r e c e i p t s c u l l e d from m o n e y s o u r c e s , it i s c l e a r that t h e D e f e n d a n t c a n a c c o u n t f o r m o n i e s far i n e x c e s s o f t h e a l l e g e d m i s s i n g $ 9 6 , 8 7 6 . 0 0 and, in fact, amount to in e x c e s s o f $ 1 1 0 , 0 0 0 . 0 0 . 9.) D e f e n d a n t a v e r s t h a t a r e v i e w o f t h e trial t r a n s c r i p t c o n s t i t u t i n g a c h a n g e o f p l e a as w e l l as v i d e o t a p e s o f said p r o c e e d i n g clearly s h o w that the D e f e n d a n t n e v e r a g r e e d t h a t h e s t o l e m o n e y from t h e C i t y o f B r o c k t o n o r i t s c i t i z e n s and, i n f a c t , t h e D e f e n d a n t d i d n o t m a k e a k n o w i n g , i n t e l l i g e n t a n d v o l u n t a r y t r u e p l e a o f g u i l t t o s a i d c h a r g e s i n that h e is truly i n n o c e n t a n d t o a l l o w t h e c o n v i c t i o n to s t a n d is a n affront t o t h e t e n e t s o f t h e U n i t e d S t a t e s Constitution and the Massachusetts Declaration of Rights. T h i s d i s c o v e r y i s n e c e s s a r y t o a full, f a i r i n v e s t i g a t i o n p r i o r t o t h e filing of a M o t i o n to Vacate Guilty Plea in accordance with the applicable rules of criminal procedure and a hearing should b e held thereon. R i c h a r d J. Sproules, B y his attorney 1342 Belmon^Street, Suke 203 Brockton, Massachusetts 02401 (508) 583-4280 I have read the above and d o hereby attest that it is a t r u e recitation o f fact t o the best of m y information and belief. Signed this 30th day o f June 1995 u n d e W h e pains and pefialti^s o f perjury. CERTIFICATE O F SERVICE I, Kevin J. Reddington, Esq., hereby certify that I served a copy of t h e within M o t i o n for Discovery t o the Office of the District Attorney for Plymouth County as well a s the Special P r o s e c u t o r w h o initially handled this case, T h o m a s Brennai^ and John Kivlan o f t h e Norfolk C o u n t y District Attoi // i5.-;;: A ••AsfS BROCKTON POLICE D f f A R T M E N T ^ T EVIDENCE ENVB.OPE . CASE NO.J . f f f r t i / l r DEFENDANT - f h j g f ADDRESS - /^JL. C T T T ^ J . 6fit.T2*7J~- T T ~ D/O/B DATE SHZED PLACE SEIZED - TIME SBZE> - fjT-Al ft f f / £ \ j S \ / r W y ' OFFICERS NAME CONTENTS ENCLOSED- / / Wx NOTES: r t h e n , . ; , : . : ; 4fc>. •&he=l.dLtfeL6jtiji.de.$e_.ctSc3i:ej „%.Q.uld s i g n , f o r ;:.-: ; t . A . 1 3 " I ^ #" if--—- yourself nor . ^ - . N o * , we w o j i l d n t .MK . «K*7f«>T^-.;::. u-csyMR.-! BRENNAN*: -__: Okay. Thank you. 3 : Q. MR. things, Lieutenant. (By Mr. Kivlan)First with any you p u r s u a n t records disbursement funds a all, have some do you summons had pertaining of any monies directly about or to was the including from 1, October Y.es, sir, •-. utf Sg*-fuDiLiddQrrthatrrheirW9uil:d:rgiyecme;iwhen have some n o t e s to that a b €p ^ t y i i d o i i a ^ s v €o t c a t b u 3 f , d a n d c h e v g a v e it records recently for use, Chief he, if a Sproules 24, I would to quick suppression indirectly 1987 of other issued crime A. I couple receipt, on I do. September that from r ^O a Just you received or to of KJVLAN: 1989? get he M) from got say detective, ^ Vr V \^*~ f*y V) 1 I XiAWOFFKCES OF K E V I N J . REDDrNTGTOKT June 30. 1995 DELIVERED IN HAND WILLIAMSBURG SQUARE SUITE 203 134S BELMONT STREET BROCKTON, MASSACHUSETTS 0S401 (50S) S8O-SI86 (508) SS3-42SO FAX (5 OS) 588-2174 B r o c k t o n Superior Court 7 2 B e l m o n t Street Brockton, M A 02401 A T T N : Clerk for Criminal Business RE: Commonwealt h vs. Richard J. Sproules D e a r Sir: E n c l o s e d please find t h e above captioned Defendant's M o t i o n for Discovery pending filing o f M o t i o n to Vacate Pleas of Guilt and hearing thereon. W o u l d you please either refer the request for special assignment t o t h e Regional Administrative Justice o r Chief Justice of t h e Superior Court if appropriate or, in t h e alternative, please notify the sentencing Justice, Hon. Suzanne DelVecchio o f the request and when appropriate assign a date for a hearing. Thank you for your attention. KJR/Iam encls. cc: Plymouth County District Attorney Norfolk County District Attorney CONFERENCE REPORT COMMONWEALTH V. ^ Richard Sproules npfA-9 Agreement regarding DISCOVERY: 1. The COMMONWEALTH will provide defendant with: x written or recorded statements of defendant in possession, control or custody of the Commonwealth < V , »\ku**. ijW^j><**p< .p4f ^.T relevant Grand Jury testimony exculpatory evidence within the possession, control, or custody of the Commonwealth x statements of persons [as defined by Rule 14(d)] names and addresses of proposed witnesses 2. The COMMONWEALTH will allow defendant to examine and inspect t r i a l exhibits x material and relevant physical evidence and documents (specify) x reports of scientific tests 3. The DEFENDANT will provide Commonwealth with: x statements of persons [as defined by Rule 14(d)] x names and addresses of proposed witnesses 4. The DEFENDANT will allow Commonwealth to examine and -inspect: x material and relevant physical evidence and documents (specify) x t o be used a t trial reports of scientific tests 5. Additional discovery: # Y W-ohuA U(XJ<^ rtre<