Opinion
No. 12–P–535.
2013-02-1
COMMONWEALTH v. Celso DEPINA.
By the Court (TRAINOR, BROWN & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals the judge's dismissal, for lack of probable cause, of the criminal complaint against the defendant, who was charged with use of a motor vehicle without authority.
We briefly summarize the relevant facts. On June 14, 2011, officers observed a car, with two men in the front and a young woman in the back seat, enter the parking lot of a Dorchester hotel. After the woman entered the hotel, the defendant parked the car and left the engine running. Several marked police cruisers then surrounded the car, blocking it in. Upon questioning, the defendant informed the officers that the car was a rental. The defendant also stated that his cousin had rented it and that the defendant was not on the rental agreement. The police telephoned the cousin, who confirmed the defendant's story. The police arrested the defendant and secured a criminal complaint against him for use of a motor vehicle without authority, G.L.c. 90, § 24(2)( a ). The defendant moved to suppress the statements he made to police and evidence seized from the warrantless search. At the hearing on these motions, the judge asked basic preliminary questions. When she learned the basis of the charge (i.e., that the defendant was not listed on the rental agreement), the judge made the following remark: “On every charge of this nature with that being the basis, I've actually dismissed the charge at arraignment or thereafter on the request of the defendant.” The defendant then submitted a handwritten motion to dismiss, and after a brief argument on the motion, the judge dismissed the complaint over the prosecutor's objection. When pressed by the Commonwealth for her reasoning, the judge stated:
Because dismissal occurred at such an early stage, the limited facts are distilled only from the police reports, the defendant's affidavit, and the hearing transcript.
The following facts provide further background, but are not pertinent to the crime for which the complaint issued. A week before this hotel meeting, Boston police opened a missing person investigation. Finding a woman matching the description on an online escort listing, undercover officers arranged the hotel meeting. The woman who exited the car matched the visual description of the missing woman, and once she arrived in the hotel room, officers confirmed that she was the missing woman.
“[T]his type of charge which is only based on the rental agreement, I routinely dismiss. I do not find that it is a criminal matter. I do not find that it supports the charge of use without authority as a probable cause matter. So without any evidence or anything else, if the basis is clear from the report or from the Commonwealth to be only that this individual is not on the rental agreement from the rental company, I do not feel that that supports a finding or a charge of use without authority, unless you have some evidence that he used it without authority of the renter or any other factors.”
“It is well established that 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.” Commonwealth v. Manning, 75 Mass.App.Ct. 829, 831–832 (2009). To do so violates separation of powers principles, because the decision to nol pros lies exclusively with the executive branch. Id. at 832. However, a judge may dismiss the case over the Commonwealth's objection, if the grand jury did not “hear sufficient evidence to establish the identity of the accused and probable cause to arrest him.” Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982) (citation omitted). Probable cause to arrest requires “reasonably trustworthy information ... sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offense.” Ibid., quoting from Commonwealth v. Stevens, 362 Mass. 24, 26 (1972).
“The standard of probable cause to authorize a criminal complaint is the same as the standard that governs the grand jury's decision to indict.” Commonwealth v. Bell, 83 Mass.App.Ct. 61, 63 (2013).
The probable cause requirement under McCarthy “is considerably less exacting than the requirement that a judge must apply at trial or at a probable cause hearing under G.L.c. 276, § 38 .” Bell, supra.
The defendant argues that the Commonwealth has not established probable cause that the defendant acted knowingly, an element of use without authority. See Commonwealth v. Johnson, 6 Mass.App.Ct. 956, 956–957 (1978). See also Commonwealth v. Moran, 453 Mass. 880, 884 (2009)(grand jury must be presented with evidence on all elements of crime). “A person's knowledge or intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at the trial.” Commonwealth v. Casale, 381 Mass. 167, 173 (1980). See Commonwealth v. Bell, 83 Mass.App.Ct. 61, 64 (2013) (criminal complaint application not appropriate forum for resolving refinements such as intent). The police report notes that the defendant “stated that the car was a rental and that he was not on the rental agreement.” Further, the defendant's cousin, when telephoned by police, confirmed that the defendant was not named on the rental agreement. These facts, and the logical inferences that follow, establish probable cause of the defendant's knowledge. Cf. ibid. Thus, the complaint meets the threshold set by McCarthy, supra, and we must reverse.
Order allowing motion to dismiss complaint reversed.