Com. v. Daly
| Decision Date | 13 August 1981 |
| Citation | 424 N.E.2d 1138,12 Mass.App.Ct. 338 |
| Parties | COMMONWEALTH v. William F. DALY, III. |
| Court | Appeals Court of Massachusetts |
Kathleen Coffey, Asst. Dist. Atty., Boston, for the Commonwealth.
Dagmar Pollex, Somerville, for defendant.
Before PERRETTA, DREBEN and KASS, JJ.
Under Mass.R.Crim.P. 4(b), --- Mass. --- (1979), a complaint may be subscribed to by "the arresting officer, the police chief, or any police officer within the jurisdiction of a crime, a prosecutor, or a private person." It is the position of the defendant that the procedures which govern the crime of threatening (G.L. c. 275, §§ 2 through 6) are distinct and require that the person who subscribes to the complaint be either the object of the threat or one who witnessed the threat. A District Court judge adopted that position and, upon motion, dismissed the complaint. The Commonwealth has appealed pursuant to Mass.R.Crim.P. 15(a), --- Mass. --- (1979). We reverse.
Application for a complaint that the defendant threatened him with bodily harm was made under pains and penalties of perjury by John Devaney, a police officer. The complaint which issued two days later, on April 7, 1980, was subscribed to by John P. Curran, the police prosecutor. As a general rule there is no requirement that the subscriber to a complaint must have observed the incident complained of at first hand. Commonwealth v. Dillane, 11 Gray 67, 71 (1858). See also Commonwealth v. Baldassini, 357 Mass. 670, 675-677, 260 N.E.2d 150 (1970).
Indeed, the Reporter of the Rules of Criminal Procedure notes, with respect to Rule 4(b), that the practice of having a single officer obtain complaints for offenses of which he has no first-hand knowledge is "not only appropriate, but a sound administrative procedure." (See to the same effect, District Court Standards of Judicial Practice, The Complaint Procedure, § 3:23 (1975) (hereinafter cited as "The Complaint Procedure").) The Reporter goes on to note that The statutory underpinning for Mass.R.Crim.P. 4(b) appears in G.L. c. 276, § 22, St.1979, c. 344, § 20, which added a reference to the Massachusetts Rules of Criminal Procedure.
In arguing that Rule 4(b) does not apply to the offense of threatening to commit a crime against the person or property of another, the defendant emphasizes the absence of a similar conforming amendment to G.L. c. 275, § 2. Pressing this point, the defendant suggests as a reason for a different complaint procedure in the case of threats, as contrasted with other crimes, that the threat statute deals with a breach of the peace yet to occur; 1 since only speech is involved, it is, as we follow the argument, the more important that the clerk-magistrate or judge to whom the complaint is made hear it from the horse's mouth. The defendant also calls attention to a provision of c. 275, § 6, which imposes costs on the complainant if the underlying threat is ill-founded. Such a burden, the defendant argues, cannot be intended to fall on a police prosecutor and, therefore, the complainant must be one who has first-hand knowledge.
Had the Legislature intended that the crime of threatening be the subject of altogether distinct procedures, we would expect that intention to be expressed more plainly. Except for the reference to the Rules of Criminal Procedure, little differentiates G.L. c. 275, § 2, from G.L. c. 276, § 22, as may be seen by setting out one text after the other:
G.L. c. 275, § 2 : If complaint is made to any such court or justice that a person has threatened to commit a crime against the person or property of another, such court or justice shall examine the complainant and any witnesses who may be produced, on oath, reduce the complaint to writing and cause it to be subscribed by the complainant.
G.L. c. 276, § 22 : Upon complaint made to any justice that a crime has been committed, he shall examine on oath the complainant and any witnesses produced by him, reduce the complaint to writing, and cause it to be subscribed by the complainant, and, if it appears that a crime has been committed, shall issue a summons or warrant in compliance with the provisions of the Massachusetts Rules of Criminal Procedure.
When so compared, it becomes apparent that the reference to the Rules of Criminal Procedure modifies not the provision relating to the complaint procedure, but that which relates to the issuance of a summons to appear or to an arrest warrant. 2 A similar reference would not be necessary in G.L. c. 275, § 2, because specific provisions relating to arrest warrants appear in the section immediately following, G.L. c. 275, § 3. (We do not imply, we hasten to add, that the provisions relating to arrest which appear in § 3, which are nowise inconsistent with the Rules of Criminal Procedure, read the latter out of G.L. c. 275.)
More significant, the defendant's approach to G.L. c. 275, § 2, ignores the function of the application for the complaint, as distinguished from the complaint itself. That application, it will be recalled, was made in this case under pains and penalties of perjury by the arresting officer, against whom the alleged threat was made. In this regard, the arresting officer followed customary procedures. See The Complaint Procedure §§ 2:01-3:04, which covers the processing of applications for complaints, where the accused has been arrested and applications for issuance of process, where the accused has not been arrested. A complaint of threatening under G.L. c. 275, §§ 2-4, may give rise to a...
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