BY JULIE MANGANIS
---- — SALEM — A repeat drunken driver facing up to five years in prison after a jury found that he was drunk at the wheel of his truck when he plowed into a Volkswagen Beetle and pushed it more than 150 yards down Route 128 last year yesterday failed to convince a judge to dismiss the entire case.
Charles Snow III, 53, of Salem was found guilty last month of drunken driving in the crash, which occurred on Route 128 just over the Lynnfield line on Memorial Day Weekend 2012.
Prosecutors allege that it is his seventh such conviction, but under Massachusetts law, they have to prove that during a separate trial. That trial was supposed to take place yesterday in Salem Superior Court.
Instead, Snow and his attorney, William Martin, charged that prosecutors withheld the portion of a transcript of the grand jury presentation in his case that dealt with his prior convictions, which, they contended, affected his ability to receive a fair trial back in August.
Prosecutor Kel Forlizzi said the incomplete transcript was inadvertent, the result of a stenographer’s error. The stenographer, in a letter, explained that the proceeding stopped briefly when the state trooper left the grand jury room and that the portion after the trooper returned to testify about Snow’s prior record was mistakenly not transcribed.
Forlizzi, who recently took over the case, discovered the error and notified Martin.
Martin suggested that the missing transcript was, “at the very least, an irregularity, and at the very worst, well, I’ll leave that to the court to decide.”
Snow himself addressed the judge, complaining that had he seen the grand jury transcript dealing with his priors, he might have taken steps such as having the old convictions “vacated.”
Forlizzi subsequently pointed out that Snow has been aware of which cases prosecutors will be counting against him, noting that her predecessor in the case turned over copies of all of the complaints and police reports from those prior incidents. The grand jury transcript contained only a list of docket numbers read to the grand jury by a state trooper, she noted.
Snow’s record of drunken driving dates to the late 1970s. Despite that, he had a valid driver’s license because his most recent conviction was before the state eliminated a 10-year “lookback” limit on prior offenses.
Judge Timothy Feeley flatly rejected both Snow’s suggestion that the late disclosure of the transcript was intentional and led to an unfair trial, and his argument that the entire case should be dismissed as a sanction against the prosecution for a “discovery violation.”
Dismissals as a sanction are used only in cases of “extreme prejudice,” said the judge, because of public policy concerns.
Aside from that, the judge noted, Snow was long ago given the transcript of the grand jury proceedings relevant to the part of the case that was tried in August — including the trooper’s testimony about Snow’s condition at the scene of the accident. The only potential harm could have come from having to try the “subsequent offense” portion of the trial without that part of the transcript, which Snow now has.
Most subsequent offense proceedings are usually done without a jury, and the decision is made by a judge, but Snow is standing by his right to a jury trial for that. But because the jury pool in Salem Superior Court was being used to select a jury in a Beverly murder case, Snow’s case was postponed until Oct. 30.
Courts reporter Julie Manganis can be reached at 978-338-2521, via email at firstname.lastname@example.org or on Twitter @SNJulieManganis.