Opinion
No. 12–P–586.
2013-02-21
COMMONWEALTH v. Willis DONDI (and a companion case).
By the Court (KANTROWITZ, MEADE & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from orders dismissing complaints against the defendants for possession of counterfeit notes, in violation of G.L.c. 267, § 12. On appeal, the Commonwealth claims that the applications for the complaints provided the clerk-magistrate with sufficient evidence of probable cause to believe the defendants were in possession of counterfeit notes, and that the complaints should not have been dismissed. We agree and reverse.
The judge dismissed these cases for two reasons: (1) the police failed to show the counterfeit bills to the clerk-magistrate; and (2) the applications for the complaints failed to establish probable cause to believe that the defendants possessed the requisite knowledge and intent to commit the crime. Neither reason justified the dismissal orders. This case is controlled in all material respects by our recent opinion in Commonwealth v. Bell, 83 Mass.App.Ct. 61 (2013), where we held that in the context of a criminal complaint application, all that is required is “sufficient evidence to establish the identity of the accused and probable cause to arrest him.” Id. at 63. This can be satisfied with “reasonably trustworthy information ... sufficient to warrant a prudent man in believing that the defendant had committed ... an offense.” Commonwealth v. O'Dell, 392 Mass. 445, 450 (1984), quoting from Commonwealth v. Stevens, 362 Mass. 24, 26 (1972). “Probable cause [to arrest] does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction.” Bell, supra, quoting from Commonwealth v. Gallant, 453 Mass. 535, 541 (2009). There is nothing in the realm of probable cause that requires the clerk-magistrate to actually see the alleged contraband at issue in a complaint. Here, the clerk-magistrate could rely on the reasonably trustworthy information in the police report to determine that probable cause existed to believe the notes were counterfeit. Also, observation by the police officers of the defendants' behavior, their possession of the counterfeit money, and their exchange of the notes between one another, was sufficient to permit a finding of probable cause that the defendants were violating G.L.c. 267, § 12.
As we held in Bell, supra at 64,
“[T]he motion judge erred in dismissing the complaint against the defendant. A judge considering a motion to dismiss should not confuse the question of probable cause to arrest with questions more properly resolved by the fact finder at trial. See Commonwealth v.. Riley, 73 Mass.App.Ct. 721, 730–731 (2009). Even at trial, ‘[m]atters of intent are rarely proved by direct evidence and are most often proved circumstantially.’ Id. at 730. Just as the ‘grand jury is not the appropriate forum for reconciling subtle gradations of offenses,’ neither is the application in support of a criminal complaint the proper forum for resolving such refinements. Commonwealth v. Goldstein, 54 Mass.App.Ct. 863, 868 (2002). See Commonwealth v. Simpson, 54 Mass.App.Ct. 477, 480–481 (2002).”
Orders allowing motions to dismiss complaints reversed.