Com. v. Brandano
| Decision Date | 20 April 1971 |
| Citation | 359 Mass. 332,269 N.E.2d 84 |
| Parties | COMMONWEALTH v. Daniel BRANDANO (and a companion case 1 ). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Terence T. Troyer, Asst. Dist. Atty., for the Commonwealth.
Joseph J. Balliro, Boston, or Daniel Brandano, submitted a brief.
Max C. Goldberg, Malden, for Henry W. Strob, submitted a brief.
John J. Irwin, Jr., and Ruth I. Abrams, Asst. Attys. Gen., for the Atty. Gen., amicus curiae, submitted a brief.
Reuben Goodman, Boston, for the Massachusetts Defenders Committee, amicus curiae, submitted a brief.
Before TAURO, C.J., and SPALDING, CUTTER, REARDON and QUIRICO, JJ.
In June, 1968, the defendant Brandano was indicted and in July, 1968, the defendant Strob was indicted under G.L. c. 266, § 28, each for receiving a stolen motor vehicle, knowing the vehicle to have been stolen. These offenses were alleged to have taken place on the following dates: Brandano--March 25, 1966; Strob--February 24, 1966. In November, 1968, upon the defendants' motions their cases were continued for one year without a finding under the supervision of the probation department. Each motion was supported by an affidavit. The judge certified in each case 'that the cause relied on exists and that the interests of public justice require the allowance (of the motion).' The Commonwealth claimed an appeal in each case. In October, 1969, the indictment against each defendant was dismissed by another judge and the Commonwealth appealed.
The defendant Strob contends that G.L. c. 278, § 28E, inserted by St.1967, c. 898, § 1, permitting appeals by the Commonwealth in felony cases, is not applicable to the present case. Section 28E relates in relevant part to 'a decision, order or judgment of the court (1) allowing a motion to dismiss an indictment or complaint * * *.' He claims that the appeal does not lie because dismissal of his indictment was on the judge's own motion. We disagree. The judge's action in dismissing the indictment was based on the original motion of the defendant to continue the case for one year without a finding.
It was the clear intention of the defendant in filing his motion that the case would ultimately be dismissed. In dismissing the indictment another judge was fulfilling the intention of the first judge who continued the case for one year without a finding. See Smith, Criminal Practice and Procedure, § 1141. The mere fact that the indictment was dismissed without further motion by the defendant does not defeat the Commonwealth's right of appeal under § 28E. The same is true in the Brandano case.
The defendants' motions for continuance were based on G.L. (Ter.Ed.) c. 266, § 29, 1 and G.L. c. 276, § 87. 2 Neither of these statutes has ever been interpreted by this court with respect to the present problem. The Commonwealth contends that no precedent is available because no case has been continued generally without a finding except by agreement of the parties; and that, without the consent of the Commonwealth, no case should be so continued. The Commonwealth further argues (a) that it is not in 'the interest of public justice' to continue and dismiss these cases without a hearing and finding, and (b) that if leniency is appropriate, then the defendants' cases should be filed after a verdict, finding or plea is recorded. The Attorney General, in an amicus curiae brief, suggests that the cases should be remanded to the Superior Court for trial 'since the reasons stated in the affidavits do not justify the extra-ordinary action taken by the superior court.'
If a valid complaint or indictment is dismissed prior to a verdict, finding of plea, without an evidentiary hearing and over the objection of the Commonwealth '(t)he effect * * * is like that of quashing or entering a nolle prosequi of an indictment.' Commonwealth v. Bressant, 126 Mass. 246, 247. There is, indeed, serious doubt as to the power of a court to enter such an order. See Anderson, Wharton's Criminal Law & Procedure, § 2070; Annotation, 69 A.L.R. 240, and cases cited.
The authority of the judge to dismiss in certain situations is well established, such as where there is a faulty indictment (G.L. c. 277, § 47A, St.1965, c. 756, § 1) or after a trial or after a plea of guilty or upon refusal of the Commonwealth to prosecute. This involves no interference with the proper function of prosecuting officials. On the other hand, Attorney Gen. v. Tufts, 239 Mass. 458, 537, 538, 131 N.E. 573, 132 N.E. 322, 347. See Commonwealth v. Andrews, 2 Mass. 409, 414. In Commonwealth v. Hart, 149 Mass. 7, 8--9, 20 N.E. 310, this court said,
Undoubtedly the power of dismissal by the judge with the consent of the Commonwealth often has been exercised in circumstances where the result was fair and just to both the defendant and to the Commonwealth. In cases where a dismissal is made with the approval of the Commonwealth the judge in effect merely concurs in a recommendation of the prosecution which is exercising its authority as part of the Executive Branch of government. Indeed, in the cases of the two defendants the facts related in their affidavits, but not tested by adversary proceedings, if established might support such actions by the judge. We believe, however, that as a matter of sound criminal procedure and practice such decisions should not be made by the judge over the objection of the Commonwealth in the absence of an adversary proceeding. See Sheehan, petitioner, 254 Mass. 342, 150 N.E. 231.
The defendants seen to equate the power of the judge to place a defendant on probation with his authority to dismiss. There is a marked distinction. A defendant placed on probation is under the court's supervision pending further order or final judgment. Compare Marks v. Wentworth, 199 Mass. 44, 85 N.E. 81 (). The judge's power to place a defendant on probation does not necessarily include the authority to dismiss his case. Moreover, there is a marked difference between placing a case on file and dismissal. A case placed on file with the defendant's approval may be brought forward at any time by the district attorney whereas a defendant whose case has been dismissed with the defendant's approval can be brought to trial only by a new complaint or indictment. See Commonwealth v. Dowdican's Bail, 115 Mass. 133.
We believe that there may be serious constitutional questions as to the power of a judge to dismiss in the circumstances of these cases. See United States v....
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