Commonwealth v. Yacobian

We decline to rule on the reported questions because of the inadequacy of the record. See Reporters’ Notes to Mass. R. Crim. P. 34, Mass. Ann. Laws, Rules of Criminal Procedure at 504 (1979). No factual findings have been made by a District Court judge; nor is there a stipulated statement of facts. We have, therefore, no factual basis to determine the questions that the *1006 report seeks to raise. On the question concerning G. L. c. 276, § 33A, for example, we do not know whether the police officers’ actions were intentional or inadvertent, or whether the defendant was prejudiced as a consequence of the police officers’ actions. We cannot rule on questions of law predicated on factual findings without knowing what the facts are. See Commonwealth v. O’Neil, 233 Mass. 535, 543 (1919) (“The report over the signature of the judge should . . . recite or refer to facts or parts of the record sufficient to make intelligible the question or questions of law reported”). See also Commonwealth v. Clarke, 350 Mass. 721, 722 (1966) (report discharged and case remanded because stipulated facts “make a presentation not best suited for deciding the reported questions”); Commonwealth v. Ficksman, 340 Mass. 744, 747 (1960) (reports discharged and cases remanded because of insufficiency of the record).

James D. Casey for the defendant. Joanne Farrell, Assistant District Attorney (Charles J. Hely, Assistant District Attorney, with her) for the Commonwealth.

Report discharged and case remanded to the District Court for further proceedings.