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Commonwealth v. Harwood8/16/2000
May 2, 2000.
Workers' Compensation Act, Concurrent employment. Practice, Criminal, Preservation of evidence, Disclosure of evidence. Evidence, Failure to produce evidence, Relevancy and materiality, Exculpatory.
Indictment found and returned in the Superior Court Department on February 27, 1997.
A pretrial motion for an evidentiary hearing concerning the loss of evidence was heard by Robert H. Bohn, Jr., J.
An application for leave to prosecute an interlocutory appeal was allowed by Marshall, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. The Supreme Judicial Court on its own initiative transferred the matter from the Appeals Court.
We consider whether it was an abuse of discretion for a judge to suppress the testimony of a Commonwealth witness as a remedy for a missing file containing documents that the defendant asserts were exculpatory. A key legal question is whether any mishandling of that file by the insurance fraud bureau (IFB) can be attributed to the Commonwealth.
The defendant, Frank G. Harwood, Jr., was indicted by a special grand jury on charges of insurance fraud and larceny over $250 based on evidence that he may have filed a fraudulent workers' compensation claim with ITT Hartford Insurance Company (ITT Hartford). The claim involved an injury that reportedly occurred on June 29, 1989, while he was employed by the Scola Construction Company (Scola). The Commonwealth asserts it was prepared to show that the defendant had defrauded ITT Hartford by submitting a false claim of concurrent employment at Strand's Ski Shop (Strand's) that led to ITT Hartford's paying the defendant higher workers' compensation benefits than if he had not been working at Strand's at that time.
The defendant's claim of concurrent employment was allegedly supported by a document in the missing file at issue here -- a February 5, 1990, letter on Strand's letterhead purportedly signed by Leif Mikkelsen (February 5 letter), a coowner of Strand's, attesting to the defendant's concurrent employment. The Commonwealth asserts that the evidence indicates the signature on the lost February 5 letter was not Mikkelsen's. The defendant claims that handwriting analysis on the lost original would have nullified Mikkelsen's testimony against the defendant by establishing that, when he denied the signature on the letter was his, he lied as an immunized witness before the grand jury.
After an evidentiary hearing, the judge ruled that Mikkelsen's testimony would be suppressed. A single justice of this court allowed the Commonwealth's application for interlocutory appeal. The case was transferred to the Appeals Court, and we transferred it to this court on our own motion. We affirm.
1. Background.
We describe the facts in some detail, based on the judge's findings and the record, to elucidate our discussion of the legal issues pertaining to the missing documents.
a. The workers' compensation claim.
When the defendant filed his workers' compensation claim in 1989 for an injury to his ankle while working at Scola, ITT Hartford accepted the claim and began paying him temporary total disability benefits of $291.67 a week. The defendant's attorney then submitted a claim for concurrent employment benefits on his client's behalf, submitting various documents in support of the claim, including the February 5 letter, and requested that ITT Hartford increase the defendant's weekly workers' compensation payments. ITT Hartford in turn requested and obtained a completed Form 117 "Average Weekly Wage Computation Schedule" (Form
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