Opinion
16-P-48
04-20-2017
COMMONWEALTH v. Jay MACHADO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from an order dismissing, without prejudice, a complaint charging the defendant, Jay Machado, with possession of a class A substance (heroin) and a class B substance (cocaine). We vacate the order of dismissal.
Background. The defendant was arrested on November 21, 2014, for conduct that was the basis for the dismissed complaint. The complaint issued from the Central Division of the Boston Municipal Court Department on March 26, 2015. On May 4, 2015, the defendant was arraigned, and a pretrial hearing was scheduled for July 14, 2015. On the day of that pretrial hearing, nearly eight months after the defendant's arrest, the certificates of drug analysis had not yet been received by the Commonwealth or provided to the defendant. The prosecutor reported that he had telephoned the State laboratory the previous day and that the certificates were not yet available. The prosecutor noted that in cases where drug testing is not expedited, testing can often take one year from the time the suspected drugs are submitted.
The defendant made an oral motion to dismiss the charges for want of prosecution. Defense counsel argued that the delay in prosecution was harming the defendant because the pending drug charges caused him to be denied public housing and the housing alternatives available to him were more expensive. Neither a written motion to dismiss nor an accompanying affidavit were filed. The judge also noted that the defendant had been complying with probation and restitution requirements in another matter.
Rather than allow the Commonwealth time to respond to the oral motion or set a discovery schedule or a date by which the Commonwealth must produce the drug certificates or face dismissal, the judge allowed the defendant's motion. The dismissal was without prejudice and over the Commonwealth's objection. The Commonwealth appealed.
Discussion. "Dismissal of a criminal complaint is the most severe sanction that a court can impose to remedy misconduct on the part of the Commonwealth.... The burden is on a defendant to demonstrate why the dismissal of criminal charges is warranted," and "[t]he threshold to be crossed before dismissal is appropriate is high." Commonwealth v. Butler, 87 Mass. App. Ct. 183, 186 (2015), quoting from Commonwealth v. Gardner, 467 Mass. 363, 368-369 (2014). We will uphold a judge's order to dismiss without prejudice unless there has been an abuse of discretion. Commonwealth v. Anderson, 402 Mass. 576, 579 (1988).
Our decision in Butler, supra, is instructive. In Butler, a judge dismissed a criminal complaint, without prejudice, as a result of the Commonwealth's failure to timely provide discovery (drug certificates of analysis) to the defense. Butler, supra at 184-186. We concluded that dismissal was an abuse of discretion where the case was at the pretrial stage, the prosecutor had not acted in a "cavalier" fashion, the defendant was not inconvenienced by the delay, a mitigating reason existed for the delay, and the record was silent as to the two continuances that had occurred. Id. at 188-189.
As in Butler, the circumstances here did not warrant dismissal of the complaint. There was no evidence of prosecutorial misconduct, and the prosecutor's attitude regarding the case was not "cavalier," where he had inquired about the drug certificates before the pretrial hearing. Because the case had not yet reached trial, there was no inconvenience to jurors or witnesses. Contrast Commonwealth v. Joseph, 27 Mass. App. Ct. 516, 519-520 (1989) (order dismissing charges affirmed where case had been repeatedly continued because of Commonwealth's failure to provide defense counsel with crucial discovery and prosecutor neglected to summons witnesses for first day of trial).
Unlike in Butler, where the delay in drug testing was caused at least in part by the closure of the State laboratory in the Jamaica Plain section of Boston, there is no mitigating reason for the delay on the record in this case. Nonetheless, we conclude that outright dismissal without warning to the Commonwealth to rectify the situation was inappropriate.
Nor did the defendant show inconvenience or prejudice to himself resulting from the delay. The case was on for a pretrial hearing, not a trial. The defendant was not in custody. Moreover, while he did offer representations of counsel that the pending charges harmed the defendant, he did not offer evidence of these facts and he did not tie any prejudice specifically to the delay in discovery of the drug certificates. See Commonwealth v. Jackson, 27 Mass. App. Ct. 521, 523 (1989) (insufficient prejudice to warrant dismissal where defendant's five witnesses were present and ready for trial: "[W]e do not view that fact, standing alone, as sufficient to constitute prejudice justifying dismissal of the complaint[ ]"). Nor did the judge consider a less drastic alternative to dismissal. The fact that the dismissal was without prejudice does not ameliorate its impact where the Commonwealth has speedy trial obligations. The Commonwealth represented at oral argument that over four months elapsed from the time of the application for a criminal complaint until the court issued that criminal complaint, and the Commonwealth was concerned there would be a similar delay in the issuance of a new complaint.
The defendant argued that the added housing expense made it difficult to make his restitution payments; however, the restitution payments to which the defendant referred involved a separate case and are irrelevant to the charges at issue here.
Given the public's interest in prompt resolution of criminal charges, the Commonwealth might be better served to take heed of the motion judge's underlying message and, to the extent possible, avoid such delays as appear in this case as well as have more definitive information about when drug certificates will be available.
--------
In sum, dismissal under these circumstances was an abuse of discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). The order dismissing the complaint is vacated.
So ordered.
Vacated.