Com. v. Balliro
| Decision Date | 24 March 1982 |
| Citation | 433 N.E.2d 434,385 Mass. 618 |
| Parties | COMMONWEALTH v. Paul J. BALLIRO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Robert L. Rossi, Asst. Dist. Atty., for the Commonwealth.
Mark G. Miliotis, Boston, for defendant.
Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN and O'CONNOR, JJ.
The Commonwealth appeals from the allowance by a Superior Court judge of a motion to dismiss indictments charging the defendant with motor vehicle homicide; driving under the influence of narcotics, depressants, or stimulant drugs; and driving so as to endanger. The judge allowed the motion on the ground that, because a District Court judge had earlier dismissed substantially the same charges, prosecution of the indictments was barred. We affirm the allowance of the motion to dismiss the indictments.
The procedural background starts on July 22, 1980, with the issuance of process on two complaints from the Malden District Court charging the defendant with (1) violation of G.L. c. 90, § 24G, which includes the crime of homicide by motor vehicle, and (2) operating a motor vehicle under the influence of intoxicating liquor. Sometime in late July or early August but, in any event, prior to a pretrial conference on August 6, the district attorney's office became aware of the results of blood tests that showed no alcohol was present in the defendant's blood at the relevant time. The blood tests showed instead that the defendant's blood contained "0.19mg% glutethimide (Doriden) or metabolite," a "hypnotic" drug. It is not shown on the record whether the assistant district attorney disclosed the results of the laboratory tests at the August 6 pretrial conference. The case was scheduled for trial on September 25. The Commonwealth concedes in its brief that, "(a)pparently due to the negligence of the assistant district attorney," the Commonwealth took no action to correct the complaints until the date of trial.
On September 25, the Commonwealth moved to amend the complaints by replacing the reference to "intoxicating liquor" in each complaint with a reference to "narcotics, or depressants." 1 A judge of the Malden District Court denied the motions to amend the complaints. The Commonwealth now largely concedes that the motions to amend were properly denied because the amendments appear to be "of substance and not form." The judge then denied the Commonwealth's motion to dismiss the complaints. The assistant district attorney thereupon entered a nolle prosequi of the charges for the reason that there was a material variance between the allegations of the complaints and the proof the Commonwealth could have presented.
On that same day, September 25, at the request of the district attorney, the arresting officer filed an application for a new series of complaints charging (a) motor vehicle homicide (G.L. c. 90, § 24G); (b) operating a motor vehicle so as to endanger (G.L. c. 90, § 24 (2) (a) ); and (c) operating under the influence of narcotic drugs, depressants, or stimulant substances (G.L. c. 90, § 24 (1) (a) ). Also on that day, notice was sent to the defendant of a hearing on the application. The defendant moved to dismiss the application, citing various grounds including the right to a speedy trial. In October, a District Court judge, without opinion, allowed the motion to dismiss the application for complaints. 2
The prosecution persisted, and in November, 1980, a Middlesex County grand jury returned indictments charging the same crimes as those for which complaints had been sought on September 25 and denied in October. On March 9, 1981, the defendant moved in the Superior Court to dismiss these indictments. A Superior Court judge allowed the motion to dismiss the indictments, concluding that the District Court judge had denied the application for complaints filed on September 25 on the ground of the denial of a speedy trial and that 3
The Superior Court judge concluded that on September 25, after the denial of the Commonwealth's motion to dismiss the complaints, the Commonwealth could still have proceeded on the charges of operating recklessly and operating negligently so that the lives or safety of the public might be endangered, and thereby causing the death of the victim. He concluded, on this assumption, that the nolle prosequi denied the defendant the protection of G.L. c. 276, § 35, which in general forbids a continuance for trial for a period exceeding ten days, over a defendant's objection. He noted that the Commonwealth was solely responsible for the failure to proceed to trial. He noted further that, although the Commonwealth had known for weeks that no charge based on the operation of a motor vehicle while under the influence of alcohol could be proved, it did nothing about it until the date assigned for trial. He regarded the violation of G.L. c. 276, § 35, as "presumptively prejudicial" and the defendant's objection to the delay of the trial as adequate to invoke his right to a speedy trial. See Commonwealth v. Ludwig, 370 Mass. 31, 34 n.1, 345 N.E.2d 386 (1976). The judge concluded that the anxiety and concern inflicted on the defendant by the delay were sufficient to warrant the District Court judge, in his discretion, to dismiss the application for complaints because there had been actual prejudice. He ordered that the defendant's motion to dismiss the indictments be allowed, and the Commonwealth has appealed. 4
The Commonwealth does not explicitly challenge the Superior Court judge's conclusion that trial properly could have gone forward on September 25 on those portions of the one complaint that may not have required proof that the defendant was under the influence of alcohol. The complaint, which is quoted in part in note 1 above, might arguably be read as charging only a crime or crimes which involved the use of a motor vehicle while under the influence of intoxicating liquor. If so, the Commonwealth could not have proved any charge then pending against the defendant, and it had no case at all on which it could have gone forward. We need not decide whether the Superior Court judge was correct in concluding that a portion of the charges could properly have gone to trial on September 25. 5
We review the propriety of the dismissal of the indictments on the same record as that which was before the Superior Court judge. Although we give deference to his conclusions, they are entitled to no special weight in the appellate process. It is significant here that the issue is not, as the Commonwealth urges, whether the defendant was entitled as a matter of right to allowance of his motion to dismiss the application for complaints filed on September 25. The question before us, as it was before the Superior Court judge, is whether the District Court judge exceeded his authority in deciding to dismiss the application for complaints.
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