Burke v. Com.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Before HENNESSEY; ABRAMS
• Citation: Burke v. Com., 365 N.E.2d 811, 373 Mass. 157 (Mass. 1977)
• Decision Date: 28 July 1977

Page 811

365 N.E.2d 811

373 Mass. 157

Thomas F. BURKE v. COMMONWEALTH Supreme Judicial Court of Massachusetts, Suffolk .

Argued Feb. 9, 1977.

Decided July 28, 1977.

Richard K. Donahue, Lowell, for plaintiff.

James W. Sahakian, Sp. Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.

ABRAMS, Justice.

Thomas F. Burke (hereinafter called the defendant), asks this court to exercise its extraordinary powers under G.L. c. 211, § 3. The case was originally submitted on the basis of pleadings and a statement of agreed facts to a single justice of this court who reserved and reported it without decision.

We review the facts as agreed to by the parties. On November 16, 1974, the defendant was arrested on charges arising out of an automobile accident. On April 3 and 4, 1975, ¹ he was tried in the District Court of Lowell on two misdemeanor charges, operating a motor vehicle so as to endanger, G.L. c. 90, § 24(2)(a ), and operating a motor vehicle while under the influence of an intoxicating beverage, G.L. c. 90, § 24(1)(a ). At the same time, a probable cause hearing was held on a charge of manslaughter, G.L. c. 265, § 13. See G.L. c. 90, § 24G, inserted by St.1976, c. 227.

On April 7, 1975, the defendant was found guilty of operating so as to endanger and was found not guilty of operating under the influence of an intoxicating beverage. No probable cause was found on the manslaughter charge.

On May 7, 1975, the identical evidence proffered in the District Court probable cause hearing was presented to the Middlesex County grand jury, and the defendant was indicted for manslaughter on that day.

On June 17, 1975, the defendant filed a motion in the Superior Court to dismiss the indictment. After a November 18, 1975, hearing, the motion was referred to a trial judge; the motion was denied. The instant action was commenced on April 30, 1976.

As a preliminary matter, we consider the contention raised by the Commonwealth that it would be inappropriate for us to use at this time our extraordinary powers under G.L. c. 211, § 3. The Commonwealth is correct in its assertion that such power should be utilized sparingly, and that interlocutory review should be granted only in extraordinary circumstances. See, e.g., Whitmarsh v. Commonwealth, 366 Mass. 212, 316 N.E.2d 610 (1974), appeal dismissed for want of jurisdiction, 421 U.S. 957, 95 S.Ct. 1945, 44 L.Ed.2d 446 (1975). However, where, as here, a single justice of this court reserves and reports an interlocutory matter to this court, we grant the litigant full appellate review. Cappadona v. Riverside 400 Function Room, Inc., --- Mass. --- ^a, 360 N.E.2d 1048 (1977); Kargman v. Superior Court, --- Mass. ---, --- ^b, 357 N.E.2d 300 (1976); Barber v. Commonwealth, 353 Mass. 236, 230 N.E.2d 817 (1967). We therefore proceed to examine the merits of the defendant's claim.

The defendant argues that on a finding of no probable cause by a judge of the District Court, the Commonwealth should be barred from thereafter obtaining an indictment relating to the same occurrence unless it presents new or different evidence in the District Court. Because the evidence before the grand jury in the instant case was identical to that heard by the District Court judge, the defendant reasons that the present manslaughter indictment should be dismissed.

This court has consistently held that a District Court determination of no probable cause "is not conclusive as to the guilt or innocence of a party charged, and is not a bar to a subsequent indictment for the same offence." Commonwealth v. Hamilton, 129 Mass. 479, 481 (1880). See Myers v. Commonwealth, 363 Mass. 843, 857 n.16, 298 N.E.2d 819 (1973); Commonwealth v. Britt, 362 Mass. 325, 330, 285 N.E.2d 780 (1972); Commonwealth v. Mahoney, 331 Mass. 510, 512, 120 N.E.2d 645 (1954); Commonwealth v. Sullivan, 156 Mass. 487, 489, 31 N.E. 647 (1892). The purpose of a probable cause hearing in a District Court is "to screen out . . . those cases that should not go to trial," and an order binding over a defendant for trial involves a finding "(1) 'that a crime has been committed' and (2) 'that there is probable cause to believe the prisoner guilty.' G.L. c. 276, § 42" (emphasis in original). Myers v. Commonwealth, supra, 363 Mass. at 847, 298 N.E.2d at 822. It is true that the probable cause standard is identical in a grand jury proceeding, and "the return of an indictment is itself a determination of probable cause and renders unnecessary a preliminary hearing." Lataille v. District Court of E. Hampden, 366 Mass. 525, 531, 320 N.E.2d 877, 881 (1974). It does not follow, however, that the finding of the District Court judge of no probable cause is a final determination of the issue.

One reason for any apparent anomaly is that the Legislature has seen fit to grant to the Commonwealth the right of appeal where serious felony cases are dismissed without trial. See G.L. c. 278, § 28E. Where, as here, no appeal lies from the District Court decision, the grand jury is the only mechanism to ensure that the criminal proceeding has been terminated correctly. Were we to adopt the defendant's position, the district attorney would be unable either to prosecute the crime or to obtain appellate review of what, in his opinion, was a good faith but erroneous decision. It would leave a class of cases, many of which involve serious crimes, lost either to further prosecution or any appellate review.

In the past, we have been careful to protect the Commonwealth's right to seek review when serious cases are dismissed over its objections. Commonwealth v. Hare, 361 Mass. 263, 270-271, 280 N.E.2d 138 (1972). Commonwealth v. Brandano, 359 Mass. 332, 337, 269 N.E.2d 84 (1971). Even limited appellate review assists this court in giving unity and coherence to criminal procedure. See Commonwealth v. Krasner, 358 Mass. 727, 267 N.E.2d 208 (1971); Commonwealth v. White, 358 Mass. 488, 265 N.E.2d 473 (1970); Commonwealth v. Boos, 357 Mass. 68, 256 N.E.2d 316 (1970) (motions dismissing the Commonwealth's cases). See also Commonwealth v. Miller, 366 Mass. 387, 318 N.E.2d 909 (1974); Commonwealth v. Pignone, 361 Mass. 566, 281 N.E.2d 572 (1972); Commonwealth v. Colella, 360 Mass. 144, 273 N.E.2d 874 (1971) (motions to suppress).

This procedure has allowed the Commonwealth to reinstitute proceedings terminated because of an incorrect ruling in the trial court, see, e.g., Commonwealth v. Miller, supra, but, on the other hand, has allowed us to affirm preliminary rulings which, in effect, put an end to a particular prosecution. See, e.g., Commonwealth v. Botelho, --- Mass. --- ^c, 343 N.E.2d 876 (1976).

Generally, a defendant, in the same circumstances, has to await final disposition prior to seeking full appellate review. Such a requirement is not unfair as it is designed to eliminate undue delay in criminal trials. The Commonwealth's right to appeal is based on the fact that a pre-trial ruling will preclude a public trial and will entirely terminate the felony proceedings; a defendant on the other hand, may seek full appellate review after a Superior Court trial. See Rosenberg v. Commonwealth, --- Mass. --- ^d, 360 N.E.2d 333 (1977).

We merely adhere to the general rule followed in other jurisdictions that absent a right to appeal an adverse determination of probable cause, the prosecutor may seek a grand jury indictment. See, e.g., State v. Elling, 19 Ariz.App. 317, 506 P.2d 1102 (1973); People v. Uhlemann, 9 Cal.3d 662, 664-665, 108 Cal.Rptr. 657, 511 P.2d 609 (1973); State v. Thomas, 529 S.W.2d 379, 382 (Mo.1975); State v. Boykin, 113 N.J.Super. 594, 274 A.2d 620 (1971); Friess v. Morgenthau, 86 Misc.2d 852, 383 N.Y.S.2d 784 (1975); State v. Cradle, 281 N.C. 198, 204, 188 S.E.2d 296, cert. denied, 409 U.S. 1047, 93 S.Ct. 537, 34 L.Ed.2d 499 (1972); State v. Mitchell, 42 Ohio St.2d 447, 451, 329 N.E.2d 682 (1975); State v. Antes, 74 Wis.2d 317, 246 N.W.2d 671 (1976). See also United States v. Dobbs, 506 F.2d 445, 447 (5th Cir. 1975); United States v. Kysar, 459 F.2d 422, 423 (10th Cir. 1972); Fed.R.Crim.P. 5(c).

The position taken by the defendant is reflected in the Model Code of Pre-Arraignment Procedure § 330.7(2) (1975), which provides that after a finding of no reasonable cause, the prosecutor may move to reinstate the complaint only on the presentation of new evidence. However, the Model Code carefully preserves the prosecutor's right to appeal an adverse determination on the issue of reasonable cause. Id. at § 330.6. See State v. Antes, supra.

In our view, the defendant's suggested rule might well cause a prosecutor to forgo probable cause hearings in favor of seeking direct indictments. See Lataille v. District Court of E. Hampden, 366 Mass. 525, 320 N.E.2d 877 (1974)...