Opinion
15-P-784
04-19-2016
COMMONWEALTH v. AIDA MOLINA.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was charged with misleading a police officer in violation of G. L. c. 268, § 13B. The Commonwealth appeals from a judge's order allowing the defendant's motion to dismiss the charge against her. We reverse.
The Commonwealth argues that the motion judge erred because the defendant's statements were sufficient to establish probable cause to believe that she wilfully misled the police. We agree. Under G. L. c. 268, § 13B(1)(c), "whoever directly or indirectly (1) wilfully misleads (2) a police officer (3) with the intent to impede, obstruct, delay, harm, punish, or otherwise interfere thereby with a criminal investigation shall be punished." Commonwealth v. Morse, 468 Mass. 360, 370 (2014).
"Probable cause exists where 'the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Commonwealth v. Walczak, 463 Mass. 808, 848 (2012) (citation omitted). The standard is not difficult to meet. Indeed, "[i]n dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Draper v. United States, 358 U.S. 307, 313 (1959), quoting from Brinegar v. United States, 338 U.S. 160, 175 (1949).
Here, when Boston police officers asked the defendant whether her children were in her apartment, she replied several times, "No, my kids are at basketball." After the defendant's landlord asked the defendant to cooperate with the police, however, the defendant told the officers that her son was "coming down." A short time thereafter, officers found the defendant's son in the apartment.
Based on this evidence, the police had reasonably trustworthy information that would warrant a reasonable belief that the defendant had directly and wilfully misled the police with the intent to impede, obstruct, or delay the investigation into the pellet gun vandalism. Specifically, there was probable cause to establish that the defendant directly misled the police in violation of G. L. c. 268, § 13B, where the defendant stated that her son was not at home, despite the fact that he was found in the apartment a short time later. Compare Commonwealth v. O'Dell, 392 Mass. 445, 451 (1984). As such, the judge erred in her application of the law.
In the course of the hearing on the motion to dismiss, the judge remarked that although there may be "some justification" for what the police had done, she opined that "this kind of thing is overkill, which also makes people less likely to want to cooperate with the police." To the extent the judge was opining on the propriety of the charge or the prosecution itself, this was not a proper judicial consideration in the matter. See art. 30 of the Massachusetts Declaration of Rights ("the judicial [department] shall never exercise the legislative and executive powers"); Commonwealth v. Gordon, 410 Mass. 498, 501 (1991) (judge may not usurp charging decision authority constitutionally allocated to executive branch); Commonwealth v. Sattelmair, 55 Mass. App. Ct. 384, 388 (2002) ("judicial disagreement with the Commonwealth's election to prosecute . . . forms no permissible basis for judicial action"); Commonwealth v. Manning, 75 Mass. App. Ct. 829, 832 (2009) (art. 30 does not "'permit judges to substitute their judgment as to whom and what crimes to prosecute, for the judgment of those who are constitutionally charged with that duty,' namely, the prosecution" [citation omitted]).
The order allowing the motion to dismiss the complaint is reversed, and a new order is to enter denying the motion.
By the Court (Meade, Wolohojian & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 19, 2016.