Opinion
No. 14–P–1906.
07-15-2016
COMMONWEALTH v. Donyetta McCOY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is the Commonwealth's appeal from an order of the Boston Municipal Court, Charlestown Division, dismissing a complaint against the defendant, Donyetta McCoy. We reverse.
Background. On August 16, 2013, a complaint issued charging the defendant with operating a motor vehicle with a suspended license and operating a motor vehicle with a suspended registration. The defendant was arraigned on September 20, 2013, and on November 8, 2013, the defendant failed to appear at a pretrial hearing and a warrant issued for her arrest. She appeared in court later that day and the warrant was recalled. A discovery compliance and election date was set for January 8, 2014, on which the defendant again failed to appear and a warrant issued for her arrest. She appeared in court to remove the default on January 14, 2014, and a compliance and election date was set for January 24, 2014. On January 24, 2014, the defendant defaulted for a third time and a warrant issued. She appeared in court later that day to remove the default. She was ordered to appear in court on January 27, 2014, but the defendant defaulted for a fourth time and a warrant issued for her arrest. She appeared in court later that day to remove the default and a pretrial hearing was set for March 14, 2014. On that date the defendant defaulted for a fifth time. A warrant issued for her arrest and a $50 default warrant assessment was imposed. On March 18, 2014, the defendant appeared in court to remove the default and the warrant was recalled. She was ordered to appear in court on May 7, 2014, for a pretrial hearing, but she defaulted for a sixth time. A warrant issued for her arrest and a $50 default warrant assessment was imposed. On May 28, 2014, the defendant appeared to remove the default. A default removal hearing was held before a Boston Municipal Court judge. At the conclusion of the hearing, the judge dismissed the case over the Commonwealth's objection. The Commonwealth filed a timely notice of appeal on June 3, 2014.
We glean the following from the police statement that was attached to the application for the complaint. On Friday, July 26, 2013, at approximately 5:35 P.M., Trooper Jeffrey Reger was on patrol on Rutherford Avenue in Charlestown. He ran a Registry of Motor Vehicles check of a license plate on a brown Toyota Camry and learned that the owner, the defendant, had a suspended license and registration. Trooper Reger effectuated a motor vehicle stop and spoke with the operator, the defendant, who stated that she did not know that her license and registration were suspended. Trooper Reger informed the defendant that her car would be towed and that a criminal complaint would be sought in the District Court for operating a motor vehicle with a suspended license and a suspended registration.
When the defendant came into court to remove her sixth default on May 28, 2014, she did not move to dismiss the case for any reason. Rather, defense counsel told the judge that, “once she clean[ed] this warrant up,” the defendant's “license [would] be okay.” The defendant indicated that she “might have to pay the hundred-dollar registration fee,” and defense counsel agreed. The judge then asked the Commonwealth how it wanted to “deal with this case.” The Commonwealth responded that because of the defendant's record of “[continuances without findings] on motor vehicle violations,” he believed the Commonwealth “would be looking for a conviction, even if just a fine.” He then explained the defendant's history of defaults in this case and requested a $1,000 cash bail. The judge then sua sponte dismissed the charges against the defendant over the objection of the Commonwealth.
Discussion. “In the context of criminal prosecutions, the executive power affords prosecutors wide discretion in deciding whether to prosecute a particular defendant, and that discretion is exclusive to them.” Commonwealth v. Cheney, 440 Mass. 568, 574 (2003). See Commonwealth v. Gordon, 410 Mass. 498, 500 (1991). Article 30 of the Massachusetts Declaration of Rights provides,
“In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”
“Judicial review of decisions which are within the executive discretion of the [prosecutor] would constitute an intolerable interference by the judiciary in the executive department of the government and would be in violation of art. 30 of the Declaration of Rights.” Shepard v. Attorney Gen., 409 Mass. 398, 401 (1991) (quotation omitted). “Thus, when a judge, ‘[w]ithout any legal basis ... preempt[s] the Commonwealth's presentation of its case [t]hat action effectively usurp[s] the decision-making authority constitutionally allocated to the executive branch.’ “ Cheney, supra, quoting from Gordon, supra at 501. “Pretrial dismissal, over the Commonwealth's objection, of a valid complaint or indictment before a verdict, finding, or plea, and without an evidentiary hearing basically quashes or enters a nolle prosequi of the complaint or indictment.” Commonwealth v. Pellegrini, 414 Mass. 402, 404 (1993). See Commonwealth v. Pyles, 423 Mass. 717, 719–720 (1996). “[T]he decision to nol pros a criminal case is within the discretion of the executive branch of government, free from judicial intervention.” Gordon, 410 Mass. at 500. See Pyles, supra at 720 (“A decision to enter a nolle prosequi on a criminal charge rests with the executive branch of government and, absent a legal basis, cannot be entered over the prosecutor's objection”).
Here, it appears that the judge dismissed the charges against the defendant because he did not believe it was a case that should be prosecuted. The Commonwealth argued that the record reflects the defendant's blatant disregard for the law—as evidenced by her six previous defaults in this case and nine prior suspended license charges. The judge's belief that this case did not merit prosecution was not grounds to dismiss the case.
It is for the district attorney, not a judge, to determine whether a criminal case is a wise exercise of prosecutorial discretion. It is also well established that “a judge is not precluded from dismissing [a complaint] that [is] legally invalid.” Cheney, 440 Mass. at 575 n. 12.
“A complaint may be found invalid for a variety of reasons including, for example, that it was issued without probable cause to believe a crime was committed, see Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982), in violation of the double jeopardy clause, or where the evidence to be presented at trial is insufficient to support a conviction. See [Gordon ], 410 Mass. [at] 502 [ ]. See also Commonwealth v. Manning, 75 Mass.App.Ct. 829, 832 (2009). However, ‘the judiciary does not have the power to dismiss an otherwise legally adequate complaint or indictment prior to verdict, finding, or plea, over the objection of the prosecutor.’ Id. at 831–832. See Commonwealth v. Tim T., 437 Mass. 592, 594–597 (2002) ; Commonwealth v. Cheney, supra at 574–575.”
Commonwealth v. Everett, 88 Mass.App.Ct. 902, 903 (2016).
The defendant here did not file a motion under Mass.R.Crim.P. 13(c), as appearing in 442 Mass. 1516 (2004), or under any other rule, asserting any ground for dismissal, nor did the judge identify any legal ground for dismissing the complaint. Had the defendant's pretrial investigation determined that she had a valid basis to move to dismiss the complaint, she could have filed a motion to dismiss the complaint, which would have been litigated in the ordinary course. Absent that, the decision regarding whether the prosecution of the defendant is a wise use of prosecutorial discretion belongs to the district attorney alone, and the judge erred in usurping that authority. See ibid.
Order dismissing complaint reversed.