Opinion
14-P-1276
05-05-2016
COMMONWEALTH v. VANCE TRAYNHAM.
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 Commonwealth appeals from an order dismissing without prejudice the complaint against the defendant alleging operating a motor vehicle while under the influence of liquor in violation of G. L. c. 90, § 24. For the reasons stated infra, we affirm.
The relevant procedural background is undisputed. The plaintiff was arrested on June 2, 2009, for violating G. L. c. 90, § 24. A criminal complaint issued from the Roxbury Division of the Boston Municipal Court Department (BMC) the same day. On August 7, 2009, the case was continued for trial on September 30, 2009. On September 30, 2009, the Commonwealth requested and received a continuance until November 12, 2009. The corresponding docket entry contains the notation: "No further continuances for Commonwealth." On November 12, 2009, the defendant failed to appear in court and a default warrant issued. A pretrial hearing was scheduled for January 29, 2010. On that date, the defendant once again failed to appear in court and another default warrant was issued. On March 12, 2010, the case was once again scheduled for trial on May 5, 2010.
However, on May 5, 2010, the defendant did not appear in court because he was in Federal custody. This fact is noted on the docket. Trial was set for May 25, 2010, and a writ of habeas corpus was issued, ordering the defendant to be brought to court for trial. On May 25, 2010, the defendant was not brought to court. On October 17, 2011, the defendant filed a speedy trial motion and the case was continued until November 17, 2011. On November 17, 2011, the defendant was once again not brought to court. The defendant was released from Federal custody on April 25, 2012.
On July 10, 2012, the defendant filed motions for funds and discovery, and the case was continued until September 20, 2012. On September 20, 2012, the defendant requested and received a continuance until November 15, 2012, because his attorney was ill. On November 15, 2012, the defendant did not appear and a default warrant was issued. On July 8, 2013, a new attorney was appointed for the defendant and the case was continued until September 20, 2013. The case was continued three more times until April 11, 2014. In the meantime, on March 12, 2014, the defendant filed a motion to suppress that was scheduled to be heard on April 11.
On April 11, 2014, when the judge called the motion to suppress, the prosecutor said that the Commonwealth was not ready to go forward. He explained, "There are two necessary officers. One of them we have been unable to get a hold of and the other one . . . , from what we understand . . . , is at the Central Division of the BMC today and therefore not able to be here today." After a short back-and-forth, the judge dismissed the case without prejudice. The corresponding docket entry indicates that the case was "DISMISSED FOR WANT OF PROSECUTION."
"Where a judge dismisses a criminal complaint without prejudice, the judge's decision shall be upheld absent an abuse of discretion." Commonwealth v. Butler, 87 Mass. App. Ct. 183, 187 (2015), quoting from Commonwealth v. Gardner, 467 Mass. 363, 368 (2014). Here, where the case was almost five years old, the docket indicated "[n]o further continuances for Commonwealth," and the Commonwealth had failed to secure the attendance of the witnesses necessary to go forward with the motion to suppress, the judge did not abuse his discretion in dismissing the case without prejudice. Cf. Commonwealth v. Anderson, 402 Mass. 576, 579 (1988) ("The District Court judge acted within his discretion in dismissing the complaints without prejudice. The judge was warranted in finding, as he did, that the prosecutor's unpreparedness and tardiness resulted in unnecessary inconvenience to the jurors and to the defendant"). This is particularly true because, at the time of the dismissal, the six-year statute of limitations on the alleged violation of G. L. c. 90, § 24, had not yet run. See G. L. c. 277, § 63. See also Commonwealth v. Valchuis, 40 Mass. App. Ct. 556, 561 (1996) (statute of limitations for violation of G. L. c. 90, § 24[2], is six years). The Commonwealth could have recharged the defendant had it chosen to do so.
Order of dismissal affirmed.
By the Court (Grainger, Rubin & Milkey, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: May 5, 2016.