Opinion
16-P-0782
04-28-2017
COMMONWEALTH v. Jason WILLIAMS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from the dismissal of a criminal complaint against the defendant, Jason Williams, by a judge of the District Court. The complaint charged the defendant with assault and battery on a family or household member, G. L. c. 265, § 13M, and strangulation or suffocation, G. L. c. 265, § 15D. For the following reasons, we vacate the order of dismissal and remand for proceedings consistent with this memorandum and order.
We limit our discussion of the facts to the issue at hand, and as the judge could have found them, reserving some facts for later discussion. The defendant appeared before the judge at a pretrial hearing. His counsel informed the judge that the victim had a privilege under the Fifth Amendment to the United States Constitution and that she did not want to proceed with the case. The Commonwealth objected to the victim's exercising her Fifth Amendment privilege. In response to the judge's inquiry, the Commonwealth summarized other evidence underlying the complaint: observations made by the police officers who responded to the 911 call and a recording of the 911 call, which had not yet been reviewed.
The judge found that the victim had knowingly, freely, and voluntarily invoked her Fifth Amendment privilege. He then dismissed the case against the defendant. The Commonwealth objected, arguing that the judge erroneously dismissed the complaint in violation of art. 30 of the Massachusetts Declaration of Rights.
"Article 30 creates a separation of power between the branches of government essentially granting the prosecutor exclusive power to decide whether to prosecute a case." Commonwealth v. Pellegrini, 414 Mass. 402, 404 (1993). However, a judge may dismiss a legally invalid complaint. See Commonwealth v. Everett, 88 Mass. App. Ct. 902, 903 (2015). When a judge has authority to dismiss a case sua sponte, with certain exceptions not applicable here, the dismissal must follow the procedure enunciated in Commonwealth v. Brandano, 359 Mass. 332, 337 (1971).
For cases arising in the Boston Municipal, District, and Juvenile Court Departments, the Legislature provided a statutory alternative to the Brandano procedure when it rewrote G. L. c. 278, § 18. See Everett, supra. The defendant did not raise the provisions of § 18 and, in any event, that procedure was not followed.
The complaint was a legally valid complaint as the information in the police report alone was enough to enable "a prudent person in believing that the individual arrested has committed or was committing an offense.... [P]robable cause requires more than mere suspicion but something less than evidence sufficient to warrant a conviction." Commonwealth v. Ilya I., 470 Mass. 625, 627-628 (2015) (citations and quotations omitted). Therefore, the judge was not permitted "to substitute [his] judgment as to whom and what crimes to prosecute." Commonwealth v. Cheney, 440 Mass. 568, 575 (2003).
The police officer who responded to the 911 call arrived to find the house in disarray, heard fighting voices, sounds indicative of someone hitting someone else, and found the defendant on top of the victim. The officer also saw bruises and scratches on the victim. When separated, the victim stated to the police officer that the defendant had choked her.
Although we find the judge had no discretion to dismiss the complaint, we briefly address the defendant's remaining arguments. The defendant posits that the failure to follow the Brandano procedure is overcome by the sworn testimony of the victim invoking her Fifth Amendment privilege and by the judge's inquiry on the Commonwealth's other evidence supporting the complaint. We find no authority supporting the defendant's position. The present case is unlike Commonwealth v. Black, 403 Mass. 675, 678 (1989), where the record disclosed that "[e]ach party filed affidavits, counter affidavits, and memoranda of law" and the Commonwealth failed to object to the alternative procedure utilized in the case. Here, the Commonwealth objected to the victim's invocation of her Fifth Amendment privilege and the parties did not follow Brandano in substance.
Brandano requires that both parties file affidavits and a hearing be held "unless the judge concludes that on the face of the affidavits the interests of public justice do not warrant a dismissal." Brandano, supra.
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The defendant also claims that the Commonwealth's objection was belated because it occurred "[m]ore than a page and a half of the transcript" after the judge orally dismissed the case. Nothing in the transcript suggests that a long period of time transpired between the oral dismissal and the Commonwealth's objection, nor is there any speculation as to whether the Commonwealth actually objected as in Commonwealth v. Rosenfield, 20 Mass. App. Ct. 125, 128 (1985), the case relied upon by the defendant.
We reverse the order dismissing the complaint, and the case is remanded for proceedings consistent with this memorandum and order.
So Ordered.
Reversed and remanded.