Com. v. Black

• Decision Date: 04 January 1989
• Citation: 532 N.E.2d 43,403 Mass. 675
• Parties: COMMONWEALTH v. David J. BLACK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 43

532 N.E.2d 43

403 Mass. 675

COMMONWEALTH v. David J. BLACK.

Supreme Judicial Court of Massachusetts Franklin.

Argued Oct. 6, 1988.

Decided Jan. 4, 1989.

David C. Hoover, Sp. Asst. Atty. Gen., for the Com.

Francis L. McDonald, for defendant.

James R. Hanson of Ohio & Francis L. McDonald, for Concerned Coastal Sportsmen's Association, Inc., & others, amici curiae, submitted a brief.

Sara Romer & Beth A. O'Neill, for Massachusetts Society for the Prevention of Cruelty to Animals, amicus curiae, submitted a brief.

Douglas G. Sanborn of New Jersey & Carol L. Reiter, for Friends of Animals, Inc., amicus curiae, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, LIACOS, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

The defendant was charged in the Orange Division of the District Court Department with using a "steel jaw leghold trap" in violation of G.L. c. 131, § 80A (1986 ed.). ¹ Pursuant to Mass.R.Crim.P. 13, 379 Mass. 871 (1978), the defendant moved to dismiss the complaint arguing that his trap, a Woodstream Soft Catch Trapping System, ² is not a "steel jaw leghold trap" prohibited by § 80A. After hearing argument on the motion, examining the trap in question, and reviewing the affidavits and memoranda of law submitted by the parties, the District Court judge found that the "soft catch trapping system" is not a "steel jaw leghold trap" and it is not designed to cause injury or suffering to the trapped animal, and therefore granted the defendant's motion to dismiss. ³ The Commonwealth appealed the dismissal pursuant to Mass.R.Crim.P. 15(a), 378 Mass. 882 (1979). We transferred the case here on our own motion. We affirm.

1. Motion to dismiss. The Commonwealth argues that the District Court judge lacked the authority to grant the dismissal motion because finding that the "soft catch trapping system" is not a "steel jaw leghold trap" is the equivalent of entering a nolle prosequi which power is reserved to the Commonwealth's prosecutors. See Commonwealth v. Brandano, 359 Mass. 332, 335-336, 269 N.E.2d 84 (1971). Although this issue is raised for the first time on appeal, the Commonwealth argues it is properly before us since a court's authority to act raises a jurisdictional issue which may be raised at any stage of the proceedings. Commonwealth v. Andler, 247 Mass. 580, 581-582, 142 N.E. 921 (1924). Commonwealth v. Hawkins, 21 Mass.App.Ct. 766, 767, 490 N.E.2d 489 (1986).

The Commonwealth argues that deciding this issue in the context of a motion to dismiss, as opposed to a full evidentiary hearing, was improper because the judge's decision was not based on all the contemplated evidence. ⁴ That argument has no force where the Commonwealth not only failed to object to the procedure, but rather agreed that no witnesses would be called at the hearing. In Commonwealth v. Brandano, supra 359 Mass. at 337, 269 N.E.2d 84, we stated that, when the defendant seeks dismissal of a complaint over the Commonwealth's objection, each party should submit affidavits in support of its position and there should be a hearing on any disputed matter. In Commonwealth v. Clark, 393 Mass. 361, 365, 471 N.E.2d 349 (1984), we held that the judge's use of the Brandano procedure when hearing the defendant's pretrial motion to dismiss, because of the insufficiency of the Commonwealth's contemplated evidence, was inappropriate since the Commonwealth's stipulations and offers of proof indicated that there was additional evidence. See Rosenberg v. Commonwealth, 372 Mass. 59, 63, 360 N.E.2d 333 (1977). Clearly these principles do not apply where the Commonwealth willingly participates in pretrial procedures potentially dispositive of the case, raising no objection nor making any attempt to inform the judge of its desire to offer additional evidence.

Furthermore, an examination of the record discloses that the parties followed, in substance, the procedures laid out in Brandano. Each party filed affidavits, counter affidavits, and memoranda of law. Additionally, each party filed additional affidavits after the motion hearing. We note that, if the Commonwealth had not agreed to this procedure and the defendant were acquitted at trial, the Commonwealth would not have been able to seek appellate review. Commonwealth v. Therrien, 383 Mass. 529, 532, 383 N.E.2d 897 (1981). See Mass.R.Crim.P. 15(a). In these circumstances we conclude that the judge acted properly in deciding the case on the basis of the defendant's motion.

2. Steel jaw leghold trap. It is a well-established principle that a penal statute must be strictly construed against the Commonwealth. Commonwealth v. Perry, 391 Mass. 808, 813, 464 N.E.2d 389 (1984). Commonwealth v. Clinton, 374 Mass. 719, 721, 374 N.E.2d 574 (1978). Commonwealth v. Federico, 354 Mass. 206, 207, 236 N.E.2d 646 (1968).

In determining the type of traps prohibited by the phrase "steel jaw leghold trap" we must not regard any of the statute's words as superfluous and each term should "be given its ordinary meaning without overemphasizing its effect upon the other terms appearing in the statute, so that the enactment considered as a whole shall constitute a consistent and harmonious statutory provision capable of effectuating the presumed intention of the Legislature." Commonwealth v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 352 Mass. 617, 618, 227 N.E.2d 357 (1967). The Commonwealth argues that the terms "steel jaw leghold trap" and "leghold trap" have been used interchangeably and refer to the same device, and therefore the "soft catch trapping system" is properly characterized as a "leghold trap of the coil spring type." To accept the Commonwealth's argument would require us to disregard the Legislature's use of the term "steel" in the statutory...