Opinion
No. 15–P–759.
06-24-2016
COMMONWEALTH v. Jason K. LATIMORE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from the dismissal of a complaint charging the defendant, Jason K. Latimore, with failure to stop for police, see G.L. c. 90, § 25, and possession of an open container of alcohol in a motor vehicle, see G.L. c. 90, § 241. The parties were in court on a motion to suppress evidence. The Commonwealth was ready to proceed and had two witnesses present. The judge, operating under a misunderstanding of the amount of the fine, declared that because he was being recorded he was:
“[R]estrained from saying the things that you really want to say and sometimes you ought to say, even though some people say you ought not to say that. So, all that being said, or unsaid, there are things that I think require us to summons three police officers at a rate that goes beyond the financial. And I can promise you that the cost to the Commonwealth for one of these officers, let alone three of them, exceeds the maximum cost that we could hit Mr. Latimore up for on these penalties. Now, I'll say this as well: I'm sure Attorney Hanson, Attorney Patterson have put in a lot of work on this, as students are apt to do, at a pretty healthy cost of their tuition. And he's not even entitled to court-appointed counsel on this case, because the maximum fine is a hundred dollars. Mr. Patterson has—I'm sorry, Mr. Latimore has a lot of things he needs to be dealing with. Okay? And at some point, he's going to have to come to grips on his own with what needs to be done and what doesn't need to be done. Okay? Because he's only thirty-one years old. Am I right about that?”
The judge made a few inquiries of the defendant and then said:
“All right. So, all that being said, if you think I'm going to sit here and have a motion to suppress of observations which I think, you know—well, on a case where it's a maximum of a hundred dollars, I mean, we've got stuff that we need to be doing in this session, and what disappoints me is that I have two attorneys on this case that only has a hundred dollars and I have several attorneys who don't even bother to show up on cases that involve two and a half years in the house of correction. That's problematic. I mean, it's not your fault, it's not your fault, your fault or your fault. I'm just saying as an observer of the system who's concerned. I do think the hundred dollars is a good equivalent to being arrested, taken into custody, the car had to be towed, who had to pick it up-somebody picked up the car, that somebody had to be called in the middle of the night to pick up the car. All right? So, over the Commonwealth's objection, I preserve your right to appeal.”
The judge dismissed the case. While the judge's frustration at what he perceived to be a waste of judicial resources is understandable, his action is not. The separation of powers among the three branches is inviolate. See art. 30 of the Massachusetts Declaration of Rights. Here, the judge stepped into the realm of the executive branch by dismissing a case because he did not perceive it to be worth the time and the resources involved. Such a decision belongs solely to the prosecutor. Unless there is an absence of probable cause or some egregious misconduct by the prosecutor, dismissal of a case over the objection of the prosecutor, as this was, is inappropriate. Commonwealth v. Pellegrini, 414 Mass. 402, 404–405 (1993). We recently addressed this issue, with the same judge, in Commonwealth v. Everett, 88 Mass. Mass.App.Ct. 902 (2015). Here, the judge did not follow the procedure set forth in G.L. c. 278, § 18, which would permit a dismissal if it is done in compliance with the terms of the statute, which requires the proffer of a guilty plea or an admission to sufficient facts with a request for a continuance without a finding. Commonwealth v. Cheney, 440 Mass. 568, 571 (2003).
We also have reversed orders of dismissals by this same judge in at least two unpublished decisions pursuant to our rule 1:28, for similar reasons. See Commonwealth v. Bowden, 88 Mass.App.Ct. 1114 (2015) ; Commonwealth v. Johnson, 89 Mass.App.Ct. 1119 (2016).
Order of dismissal reversed.