Com. v. Marchionda
| Decision Date | 07 December 1981 |
| Citation | 431 N.E.2d 177,385 Mass. 238 |
| Parties | COMMONWEALTH v. Guido MARCHIONDA. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
James W. Sahakian, Asst. Dist. Atty., for the Commonwealth.
Stuart I. Rosnick, Beverly, and Timothy G. Madigan, Stoneham, for defendant, submitted a brief.
Before HENNESSEY, C. J., and LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.
In this case the Commonwealth appeals a ruling of a District Court judge dismissing a complaint against the defendant. The case was transferred to this court on our own motion. We conclude that the dismissal was in error. We reverse.
The defendant was found guilty in the Fourth District Court of Eastern Middlesex of indecent exposure and was sentenced. He exercised his right of appeal to a six member jury and the case was scheduled for jury trial on November 20, 1980. At the first call of the case on that day the prosecutor informed the judge that the complaining witness had been summonsed but was not present, and the case was set down for second call. At second call the defense answered ready for trial. The prosecutor informed the judge that the complaining witness had not yet arrived but that the prosecutor's office had communicated with the Wilmington police department at approximately 9:55 A.M. and that the police would have the witness in court by 10:35 A.M. The judge stated that the jury would be empanelled and assented to the prosecutor's request not to swear the jury until the Commonwealth's witness was present.
Empanellment began. The jurors were called in the order of numbers assigned to them by the office of the jury commissioner for Middlesex county, pursuant to G.L. c. 234A, §§ 3, 14, and regulations thereunder. After seven women were called and the clerk asked the Commonwealth if it was content, defense counsel requested a bench conference. After the bench conference, in which the gender composition of the jury was discussed, the prospective jurors were excused and defense counsel made two oral motions. He informed the judge that it was 10:40 A.M. and that a defense witness had just gone outside and the complaining witness was not there, and he requested the judge to dismiss the case for lack of prosecution. The judge responded that he would reserve action on the motion. Defense counsel then challenged the jury array, asserting that it was comprised of a disproportionate number of women, and he challenged the procedure by which the jurors were called in the order of preassigned numbers. He moved for dismissal on these grounds.
Before taking action on the two motions, the judge heard testimony from a court officer concerning the procedure adopted by the office of the jury commissioner under G.L. c. 234A. Another bench conference then took place in which the judge stated that he was very bothered by the jury selection process and that he was going to allow the defendant's motion to dismiss but the stated reason would be the Commonwealth's failure to prosecute. The following colloquy then occurred:
The prosecutor: "Your Honor, I haven't been able to find out yet ...."
The judge:
The Commonwealth's objection was noted.
Eighteen days later the Commonwealth filed a notice of appeal, and a purported authorization for appeal pursuant to Mass.R.Crim.P. 15(a)(3)(B), 378 Mass. 882 (1979), which is signed as follows:
"For the Commonwealth,
John J. Droney
District Attorney
by: /s/Peter W. Agnes, Jr.
Peter W. Agnes, Jr.
Assistant District Attorney
...."
Rule 15(a)(1) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 882 (1979), gives the Commonwealth the right to appeal a decision by a District Court judge granting a motion to dismiss. Rule 15(a)(3)(A), 378 Mass. 882 (1979), provides that the appeal "shall be taken upon the ruling of the judge, or within such other time as the judge may allow ...." Subsection (a)(3)(B) of rule 15, 378 Mass. 882 (1979), provides:
The notice of appeal and the authorization form were filed within the time allowed by the judge and were therefore timely.
Rule 2(b)(6) of the Massachusetts Rules of Criminal Procedure, 378 Mass. 844 (1979), provides that wherever the words "district attorney" are used in the rules they include assistant district attorneys unless a contrary intent clearly appears from the context in which they are used. It does not clearly appear from the context of rule 15(a)(3)(B) that "district attorney" does not include assistant district attorneys.
Rule 15(b) gives the Commonwealth the right to appeal a Superior Court decision granting a motion to dismiss. There is no requirement that the appeal be approved. The difference in requirements is explained by the fact that in the Superior Court the Commonwealth's cases are prosecuted only by district attorneys, assistant district attorneys, the Attorney General, and assistant attorneys general, while in the District Courts the Commonwealth's cases are prosecuted not only by those officers but also by police and other prosecutors not associated with the Attorney General's office or the office of a district attorney. The purpose of rule 15(a)(3)(B) is to discourage frivolous appeals in the District Courts, 1 specifically appeals by prosecutors who are not district attorneys, assistant district attorneys, the Attorney General, or assistant attorneys general. If the objective were to discourage frivolous appeals by assistant district attorneys and assistant attorneys general, the approval requirement would appear in the section of the rule that deals with appeals of Superior Court decisions. The implication is that assistant district attorneys and assistant attorneys general are expected to make sound...
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