Com. v. Valchuis, 95-P-822

• Decision Date: 10 June 1996
• Docket Number: No. 95-P-822,95-P-822
• Citation: 665 N.E.2d 1030,40 Mass.App.Ct. 556
• Parties: COMMONWEALTH v. Dean VALCHUIS.
• Court: Appeals Court of Massachusetts

Page 1030

665 N.E.2d 1030

40 Mass.App.Ct. 556

COMMONWEALTH v. Dean VALCHUIS.

No. 95-P-822.

Appeals Court of Massachusetts Middlesex.

Argued Dec. 18, 1995.

Decided June 10, 1996.

Lincoln S. Jalelian, Assistant District Attorney, for Commonwealth.

Albert F. Cullen, Jr., Boston, for defendant.

Before ARMSTRONG, PERRETTA, and LENK, JJ.

PERRETTA, Justice.

This appeal brings before us the questions whether the issuance of a citation for a criminal motor vehicle charge tolls the applicable statute of limitations, G.L. c. 277, § 63, and whether the crime charged, leaving the scene of an accident, is a continuing offense. Concluding that the answer to both questions is no, we affirm the order dismissing the complaint against the defendant.

1. The facts. The controlling facts are undisputed. On November 11, 1987, a young man was struck by a truck which left the scene without stopping. On October 20, 1993, the defendant was issued a motor vehicle citation which indicated that an application for criminal complaints would be made for one count of leaving the scene of an accident after causing personal injury and a second like count pertaining to property damage. ¹ Within four days thereafter, the defendant signed his copy of the citation and requested a hearing before the District Court clerk-magistrate.

By letter dated November 19, 1993, the defendant was notified that a show cause hearing would be held before a clerk-magistrate on December 14, 1993. The defendant appeared on that date with counsel before the clerk-magistrate who, after the hearing, dismissed the count relating to property damage. Ten days later, on December 24, 1993, a complaint issued charging the defendant with leaving the scene of an accident after causing personal injury. See G.L. c. 90, § 24(2)(a ).

At trial, immediately following the Commonwealth's opening statement, the defendant moved for a required finding of not guilty or in the alternative for dismissal of the complaint on the stated basis that the complaint was not brought within the six-year period required by G.L. c. 277, § 63. The District Court judge denied the motion, but reconsidered it after the Commonwealth presented three of its five witnesses. ² Upon reconsideration, the judge dismissed the complaint, stating that since the crime of November 11, 1987, was not a continuing offense, the issuance of the complaint on December 24, 1993, was in violation of § 63.

2. The citation. Our analysis begins with the basic principles that criminal statutes are to be strictly construed against the Commonwealth and in favor of the defendant, see Commonwealth v. Clinton, 374 Mass. 719, 721, 374 N.E.2d 574 (1978), and that "criminal limitations statutes are 'to be liberally interpreted in favor of repose.' " United States v. Habig, 390 U.S. 222, 227, 88 S.Ct. 926, 929, 19 L.Ed.2d 1055 (1968), quoting from United States v. Scharton, 285 U.S. 518, 522, 52 S.Ct. 416, 417, 76 L.Ed. 917 (1932). See also United States v. Marion, 404 U.S. 307, 322 n. 14, 92 S.Ct. 455, 465 n. 14, 30 L.Ed.2d 468 (1971). The third sentence of G.L. c. 277, § 63, as amended by St.1955, c. 781, § 1, provides that "[a]n indictment for ... [a crime other than those specified in the preceding sentence] shall be found and filed within six years after such crime has been committed; but any period during which the defendant is not usually and publicly a resident within the commonwealth shall be excluded in determining the time limited." The Commonwealth does not dispute that § 63 is equally applicable to criminal complaints. See Commonwealth v. Northern Telecom, Inc., 25 Mass.App.Ct. 255, 257, 517 N.E.2d 491 (1988).

It is the Commonwealth's position that because prosecution of the defendant commenced with the issuance of the citation against him on October 20, 1993, the proceedings were not time-barred. The argument is flawed in the premise. Those decisions cited by the Commonwealth as support for the proposition that a warrant or other process commences a prosecution and effectively tolls the statutes of limitation are based upon statutory language which allows for such a conclusion. See, e.g., State v. Crawford, 202 Conn. 443, 521 A.2d 1034 (1987); State v. Hickman, 189 So.2d 254 (Fla.Dist.Ct.App.1966); City of Cleveland v. Strom, 32 Ohio Op. 481, 67 N.E.2d 353 (1946); Commonwealth v. Kimble, 323 Pa.Super. 499, 470 A.2d 1369 (1984). However, as noted, § 63 requires that an indictment be "found and filed" or a complaint brought (see Northern Telecom, Inc., supra ) within the six-year period. Indeed, as observed in one of the cases cited by the Commonwealth, State v. Crawford, 202 Conn. at 447-448, 521 A.2d 1034:

"Although the purpose of a statute of limitations is to ensure a timely commencement of prosecution, jurisdictions differ on what act will suffice to show such commencement. In jurisdictions where legislation requires the finding of an indictment or the filing of an information as the first step in a criminal case, the 'prosecution' is deemed commenced by either of these acts, and the running of the statute of limitations is thereby tolled. 2 W. LaFave & J. Israel, Criminal Procedure § 18.5; see 1 F. Wharton, Criminal Law (14th Ed.) § 90. In the absence of such legislation, however, it is generally held that the prosecution is commenced, and the statute tolled, at the time a complaint is laid before a magistrate and a warrant of arrest is issued ... [citations omitted]. The American Law Institute model penal code is in accord. It provides that '[a] prosecution is commenced either when an indictment is found [or an information filed] or when a warrant or other process is issued, provided that such warrant or process is executed without unreasonable delay.' Model Penal Code (1985) § 1.06(5) ... [citations omitted]."

Our conclusion, that the Commonwealth's argument is defeated by the very language of § 63, is buttressed by G.L. c. 90C, § 1 (defining a "citation" as "a notice upon which a police officer shall record an occurrence involving all automobile law violations"), ³ G.L. c. 90C, § 3(B)(2) ("If a criminal complaint is issued [after the issuance of a citation], the procedure established for criminal cases shall then be followed"), and Mass.R.Crim.P. 3(a), 378 Mass. 847 (1979) ("A criminal proceeding shall be commenced in the District Court by a complaint and in the Superior Court by an indictment").

That the citation in the present case advised the defendant that criminal complaints would be sought is of no consequence to our conclusion. Such notice, that complaints would be sought, is provided for the purpose of allowing the defendant to request a hearing on the issuance of the complaints. See note 1, supra. The fact remains that, with or without a hearing, a complaint cannot issue until there has been a determination of probable cause to believe that a crime was committed and that it was committed by the defendant. See Smith, Criminal Practice & Procedure §§ 629-632 (2d ed. 1983). A like showing is required for the finding of an indictment. See Commonwealth v. McLeod, 394 Mass. 727, 733, 477 N.E.2d 972 (1985). The Commonwealth has cited no authority for the proposition that notice of an intent to seek an arrest warrant, a complaint, or an indictment even constitutes commencement of a prosecution, let alone satisfies the more specific requirement that an indictment be found and filed or a complaint brought within six years after the commission of the crime.

3. A continuing offense. As a second basis for the contention that prosecution of the defendant is not time-barred, the Commonwealth argues that the crime charged is a continuing offense. General Laws c. 90, § 24(2)(a ), as in effect at the time of the accident, reads, in relevant part: "[W]hoever operates a motor vehicle ... and, without stopping and making known his name, residence and the register number of his motor vehicle, goes away after knowingly colliding with or otherwise causing injury to any person shall be punished ..." ⁴

In resolving whether this particular offense is a continuing one, "[w]e accept as a guiding principle that a crime is not a continuing one in the absence of a clear contrary indication from the Legislature." Commonwealth v. Ciesla, 380 Mass. 346, 348, 403 N.E.2d 381 (1980). See also Toussie v. United States, 397 U.S. 112, 115, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970), a case which concerned whether the failure to register for the draft was a...