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15-P-944 Appeals Court
COMMONWEALTH vs. ERIC MOORE.
No. 15-P-944.
Suffolk. December 5, 2017. - March 22, 2018.
Present: Trainor, Meade, & Wolohojian, JJ.
Motor Vehicle, Unauthorized use. Rules of Criminal Procedure.
Probable Cause. Practice, Criminal, Complaint, Dismissal,
Arraignment. Constitutional Law, Separation of powers.
Complaint received and sworn to in the Roxbury Division of
the Boston Municipal Court Department on March 23, 2015.
A motion to dismiss was heard by Myong Joun, J.
Helle Sachse, Assistant District Attorney, for the
Commonwealth.
Bruce W. Carroll for the defendant.
TRAINOR, J. The defendant, Eric Moore, was charged with,
among other things, using a motor vehicle without authority (use
without authority), in violation of G. L. c. 90, § 24(2)(a). At
the arraignment hearing, the defendant orally moved to dismiss
the charge of use without authority; the judge allowed the
defendant's motion prior to arraignment and proceeded to arraign
2
the defendant on the remaining charges. The Commonwealth filed
this timely appeal, arguing that the judge erred in dismissing
the use without authority charge for two reasons: first, a
complaint against an adult defendant, unlike one against a
juvenile, cannot be dismissed prior to arraignment; and second,
the complaint was supported by probable cause that the defendant
used the motor vehicle without authority. For the reasons set
forth infra, we reverse the dismissal of the charge of use
without authority.
Background. On March 23, 2015, the defendant was driving a
rental car and was pulled over for failing to come to a complete
stop at a stop sign. When the police officers asked the
defendant for his license and registration, the defendant
responded that he did not have a license in his possession.
Upon a criminal justice information system query, the officers
learned that the defendant's out-of-State license was suspended.
The officers then contacted the rental company and obtained a
copy of the rental agreement for the vehicle, which provided
that Nicole Hosier of Pittsfield was the only individual
authorized to operate the rental car. The officers subsequently
arrested the defendant for, among other things, use without
authority, and towed the rental car.
At the defendant's arraignment hearing, defense counsel
requested to be heard prior to the arraignment. Defense counsel
3
asked the judge to dismiss the use without authority charge
because the facts do "not constitute . . . use without
authority." The judge agreed, stating:
"[W]here there's a rental company, there's a lessee for
that car. If somebody else is driving, I understand the
civil issue between the rental company and whoever was
driving, and maybe there's a civil issue with the person
who actually rented the car, but under the criminal
statute, where you're charging the person with use without
authority simply based on the fact that the person who's
driving, his name is not on the lease agreement, I don't
believe that that's what the statute was intended for."
The judge dismissed the use without authority charge prior to
arraigning the defendant on that charge. The Commonwealth filed
the instant appeal. However, due to the pending release of the
Supreme Judicial Court decision in Commonwealth v. Campbell, 475
Mass. 611 (2016), the appellate proceedings for this case were
stayed. We now address the Commonwealth's appeal.
Discussion. This case requires us to decide whether a
judge can allow an adult defendant's motion to dismiss a
criminal charge prior to arraignment on that charge, after a
clerk-magistrate's finding of probable cause. Initially, this
question involves an analysis and an application of the
Massachusetts Rules of Criminal Procedure and the relevant case
law, but ultimately it also requires an analysis of a judge's
authority pursuant to art. 30 of the Massachusetts Declaration
4
of Rights.1 These analyses are separate but related, and a
judge's authority in this area is ultimately determined by the
requirements of art. 30.
1. Massachusetts Rules of Criminal Procedure. "In
interpreting a rule of criminal procedure, we turn first to the
rule's plain language." Commonwealth v. Denehy, 466 Mass. 723,
733 (2014). The Supreme Judicial Court, in this instance, has
provided us with a detailed blueprint of a party's motion
practice and the procedural stages in which such practice is to
take place. Rule 11(a), as appearing in 442 Mass. 1509 (2004),
states that "[a]t arraignment . . . the court shall order the
prosecuting attorney and defense counsel to attend a pretrial
conference on a date certain to consider such matters as will
promote a fair and expeditious disposition of the case"
(emphases supplied). Rule 11(b)(2)(ii), as appearing in 442
Mass. 1509 (2004), states that such matters shall include "all
discovery motions pending at the time of the pretrial hearing,"
and that all "[o]ther pending pretrial motions," namely
nondiscovery motions, such as a motion to dismiss, "may be heard
1 Article 30 states:
"In the government of this commonwealth, the legislative
department shall never exercise the executive and judicial
powers, or either of them: the executive shall never
exercise the legislative and judicial powers, or either of
them: the judicial shall never exercise the legislative
and executive powers, or either of them: to the end it may
be a government of laws and not of men."
5
at the pretrial hearing, continued to a specific date for a
hearing, or transmitted for hearing by the trial session"
(emphases supplied). Similarly, rule 13, as appearing in 442
Mass. 1516 (2004), provides that "[a] non-discovery motion filed
prior to the pretrial hearing may be heard at the pretrial
hearing, at a hearing scheduled to address the motion, or at the
trial session" (emphases supplied). While neither rule 11 nor
rule 13 affirmatively "prohibits a motion to dismiss from being
filed or ruled upon before arraignment," Commonwealth v.
Humberto H., 466 Mass. 562, 574 (2013), neither rule
affirmatively provides a judge with the authority to rule on
such motions brought by an adult defendant before arraignment.
Rather, the rules of criminal procedure provide a motion
practice that is implemented after arraignment and specifically
provide that a judge may rule on such motions either at the
pretrial hearing, at a hearing scheduled to address the motion,
or at the trial session, all of which naturally occur after the
defendant has been arraigned on the charge(s). Cf. Commonwealth
v. Newton N., 478 Mass. 747, 752-753 (2018); Commonwealth v.
Orbin O., 478 Mass. 759, 762-763 (2018).
Dismissing an adult defendant's charge prior to arraignment
not only would exceed the judge's authority provided by the
rules, but also would run contrary to our case law. In
6
Commonwealth v. DiBennadetto, 436 Mass. 310, 313 (2002), the
Supreme Judicial Court held:
"[T]he issuance of a complaint by a clerk-magistrate is not
to be revisited by a further show cause hearing; the
defendant's remedy is a motion to dismiss the
complaint. . . . [A] motion to dismiss . . . is the
appropriate and only way to challenge a finding of probable
cause. After the issuance of a complaint, a motion to
dismiss will lie for a failure to present sufficient
evidence to the clerk-magistrate (or judge) . . . for a
violation of the integrity of the proceeding . . . or for
any other challenge to the validity of the complaint."2,3
As previously stated, such nondiscovery motion practice occurs
after arraignment.
Moreover, the Supreme Judicial Court holding in Humberto
H., which provides Juvenile Court judges with the broad
discretion to dismiss a complaint against a juvenile defendant
prior to arraignment, does not apply to adult offenders. The
court in Humberto H. held that a judge does not abuse his or her
discretion in deciding to hear and to rule on a juvenile's
motion to dismiss before arraignment where the judge reviews the
complaint application and "concludes that there is a substantial
likelihood that the motion is meritorious." 466 Mass. at 575.
2 In all situations covered by the section's procedure,
process cannot issue unless there is probable cause to believe
that the person who is the object of the complaint has committed
the offense charged. See G. L. c. 218, § 35A.
3 Judges of the Boston Municipal Court Department and the
District Court Department have the inherent authority, however,
to rehear denials of applications for criminal complaints by
clerk-magistrates. See Bradford v. Knights, 427 Mass. 748, 752-
753 (1998).
7
See Commonwealth v. Newton N., supra; Commonwealth v. Orbin O.,
supra. In reaching this conclusion, the court reasoned that
because the "juvenile justice system 'is primarily
rehabilitative, cognizant of the inherent differences between
juvenile and adult offenders, and geared toward "the correction
and redemption to society of delinquent children,"'" Juvenile
Court judges must have the "broad discretion to protect the best
interests of children consistent with the interests of justice,"
which includes the discretion to dismiss charges before
arraignment, if no probable cause exists, to prevent the
creation of a juvenile's court activity record information
(CARI) (emphasis supplied). Commonwealth v. Humberto H., supra
at 576 (citation omitted). This analysis does not likewise
extend to adult offenders.
Here, unlike in Humberto H., the defendant has failed to
provide us with any policy reason or statutory authority that
would cause us to apply the rules of criminal procedure in a way
that would allow a judge to dismiss a criminal charge against an
adult offender prior to arraignment. See id. at 575-576
(applying [1] goal of preventing creation of juvenile's CARI,
[2] primary goal of juvenile justice system, which is to
rehabilitate juveniles, and [3] G. L. c. 119, § 53, which
mandates that juveniles "as far as practicable . . . shall be
treated, not as criminals, but as children in need of aid,
8
encouragement and guidance," to application of rules of criminal
procedure, specifically dismissal of criminal charge prior to
arraignment for lack of probable cause).
A judge, therefore, cannot dismiss an adult criminal
complaint prior to arraignment, after a clerk-magistrate has
determined that sufficient probable cause (legal basis) existed
to issue the complaint. This limitation is based in our case
law and our rules of criminal procedure and is focused
exclusively on a judge's authority prior to the arraignment
stage, subsequent to the issuance of a criminal complaint. See
Bradford v. Knights, 427 Mass. 748, 752-753 (1998); Commonwealth
v. DiBennadetto, 436 Mass. at 312-313. We must consider,
finally, whether a judge has the authority, in consideration of
the constitutional separation of powers doctrine as contained in
art. 30, to dismiss a criminal complaint after it has issued and
after the defendant has been arraigned on the charge.
2. Article 30. "In the context of criminal prosecutions,
the executive power affords prosecutors wide discretion in
deciding whether to prosecute a particular defendant, and that
discretion is exclusive to them. . . . 'Judicial review of
decisions which are within the executive discretion of the
[prosecutor] "would constitute an intolerable interference by
the judiciary in the executive department of the government and
would be in violation of art. 30 of the Declaration of
9
Rights."'" Commonwealth v. Cheney, 440 Mass. 568, 574 (2003)
(citation omitted).
A judge may determine, under our separation of powers, only
whether a sufficient legal basis exists for issuance of a
criminal complaint. "[W]hen a judge, '[w]ithout any legal basis
. . . preempt[s] the Commonwealth's presentation of its case
[t]hat action effectively usurp[s] the decision-making authority
constitutionally allocated to the executive branch.'"4 Ibid.
(citation omitted). See Commonwealth v. Hart, 149 Mass. 7, 8
(1889) ("Only an attorney authorized by the Commonwealth to
represent it has authority to declare that he will not further
prosecute a case in behalf of the Commonwealth. A court is not
a prosecuting officer, and does not act as the attorney for the
Commonwealth. Its office is judicial, -- to hear and determine
between the Commonwealth and the defendant").5
4 The right to pursue a criminal prosecution is vested in
the Commonwealth and not in a private party. While a private
party has the right to request the issuance of a criminal
complaint, if a judge or clerk-magistrate declines to issue a
complaint the private party may request a rehearing but
ultimately has no right of appeal and can only request "the
Attorney General or a district attorney to pursue the
matter. . . . Should one of these authorities decide to
prosecute, neither a judge of the District Court" (or of the
Boston Municipal Court) nor "a clerk-magistrate may bar the
prosecution, as long as the complaint is legally valid."
Victory Distribs. v. Ayer Div. of the Dist. Ct. Dept., 435 Mass.
136, 143 (2001). See Bradford v. Knights, 427 Mass. at 752-753;
Commonwealth v. Quispe, 433 Mass. 508, 511-512 & n.5 (2001).
10
The Federal courts have determined that the existence of
probable cause is necessary for a criminal charge to be legally
adequate.6 The existence of probable cause is also necessary for
a criminal charge to be legally adequate within this
Commonwealth. See generally Commonwealth v. DiBennadetto, 436
Mass. at 312; Commonwealth v. Clerk-Magistrate of the W. Roxbury
Div. of the Dist. Ct. Dept., 439 Mass. 352, 354-356 (2003);
Commonwealth v. Humberto H., 466 Mass. at 564-566. The rules of
criminal procedure and our case law have defined the procedural
requirements of a judicial determination of the legal adequacy
of a criminal complaint. This judicial determination is the
appropriate and necessary exercise of the judicial function
contained in art. 30.
Thus, procedurally, once the complaint has been issued by
the clerk-magistrate, the question of its legal adequacy cannot
be reconsidered until after arraignment of the defendant on the
5 For examples of legal justification for dismissing a case,
in addition to a lack of probable cause, when the complaint or
the indictment is legally invalid, see Commonwealth v. Gordon,
410 Mass. 498, 502-503 (1991).
6 "In our criminal justice system, the Government retains
'broad discretion' as to whom to prosecute. . . . '[S]o long as
the prosecutor has probable cause to believe that the accused
committed an offense defined by statute, the decision whether or
not to prosecute, and what charge to file or bring before a
grand jury, generally rests entirely in his discretion.'"
United States v. Zabawa, 39 F.3d 279, 284 (10th Cir. 1994),
quoting from Wayte v. United States, 470 U.S. 598, 607 (1985).
See United States v. Sanchez, 908 F.2d 1443, 1445 (9th Cir.
1990).
11
criminal charge. Reconsideration of the legal adequacy of the
issued complaint may be conducted pursuant to a motion to
dismiss after arraignment. The Commonwealth's prosecutorial
rights protected by art. 30 are implicated on the determination
of legal adequacy whether initially by the clerk-magistrate or
subsequently by a judge pursuant to consideration of a motion to
dismiss.
Conclusion. We conclude that a judge does not have the
authority to dismiss a criminal charge against an adult offender
prior to arraignment after the complaint has issued on that
charge, but does have authority to consider the legal adequacy
of the criminal charge subsequently, pursuant to a motion to
dismiss the complaint.7 Thus, here, the order dismissing the
charge of use without authority is reversed. The Commonwealth
may move for arraignment of the defendant on this charge if it
so chooses.
So ordered.
7 We note that while a judge may revisit the question of
probable cause at a later, postarraignment, stage of the
proceedings, the question whether the defendant, in this case,
was authorized by Hosier to operate the vehicle does not appear
on the record currently before us. See Commonwealth v.
Campbell, 475 Mass. at 621-622 ("[a]n individual does not
violate G. L. c. 90, § 24[2][a], by using a rental vehicle with
the renter's permission when the rental company also has not
authorized that use").