Commonwealth v. DiBennadetto
| Decision Date | 04 February 2002 |
| Citation | 436 Mass. 310,764 NE 2d 338 |
| Parties | COMMONWEALTH v. JOHN D. DIBENNADETTO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.
Joseph M. Ditkoff, Assistant District Attorney (Joseph G. Mc-Cann, Jr., with him) for the Commonwealth.
Patrick J. Murphy for the defendant.
In this case, show cause hearings to determine whether process should issue on an application for a criminal complaint were held before two different clerk-magistrates of the Boston Municipal Court Department (BMC). Each clerk-magistrate found that probable cause existed for the issuance of a complaint against the defendant for assault and battery on Bruce Sumoski, the complainant. A judge of the BMC nevertheless held a de novo hearing and found that no probable cause existed to issue the complaint. Thus, it took the defendant three bites at the apple to obtain this favorable result. We determine that a District Court or a BMC judge may not conduct a de novo evidentiary hearing to review a clerk-magistrate's finding of probable cause to issue process on an application for a criminal complaint. Thus, we vacate the decision of the judge of the BMC that no probable cause existed, and reinstate the complaint.
The facts necessary to our resolution of the above issue are essentially undisputed. Sumoski alleged that the defendant, his former landlord, struck him one night, causing him to lose consciousness. The defendant admitted involvement in some type of an encounter with Sumoski, but denied the alleged assault and battery. A police officer filed an application in the BMC for the issuance of a complaint, and, after a show cause hearing, an assistant clerk-magistrate issued process. At the defendant's arraignment almost one month later, a judge in the BMC ordered the case reheard by a different clerk-magistrate after the defendant alleged that his witness had been denied the opportunity to testify at the show cause hearing. The second clerk-magistrate again found probable cause; the defendant "appealed"; and once more the parties appeared before the same BMC judge. This time the defendant claimed that a police officer acquainted with the complainant had been improperly permitted by the clerk-magistrate "to ask questions of the [defendant] or make comments." The judge then conducted yet a third evidentiary hearing and found that no probable cause existed. The Commonwealth filed a petition for relief pursuant to G. L. c. 211, § 3, and the case was reserved and reported to the full court.
General Laws c. 211, § 3, McGuinness v. Commonwealth, 420 Mass. 495, 497 (1995). "Parties seeking review must demonstrate that they have no other legal remedy to pursue and, therefore, a petition under c. 211, § 3, is the only alternative." Id. The Commonwealth, acting through its respective district attorneys, has a substantial interest in prosecuting the commission of crimes. Indeed, "the Commonwealth may well be the only party that has standing to challenge the [court's] actions in the case before us." Commonwealth v. Clerk of the Boston Div. of the Juvenile Court Dep't, 432 Mass. 693, 698 (2000). "[T]he right[] to pursue criminal prosecution `[is] not private but [is] in fact lodged in the Commonwealth as it may proceed to enforce its laws.'" Bradford v. Knights, 427 Mass. 748, 751 (1998), quoting Whitley v. Commonwealth, 369 Mass. 961, 962 (1975). No statute provides the Commonwealth a right of appeal from an adverse determination of probable cause by a judge in the BMC or District Court Department. See Mass. R. Crim. P. 15 (a) (4), as appearing in 422 Mass. 1501 (1996) (). Thus, pursuant to our power under G. L. c. 211, § 3, to exercise "general superintendence of the administration of all courts of inferior jurisdiction," we proceed to consider the merits of the Commonwealth's claim.
The statutory provisions authorizing the issuance of criminal complaints by justices (or clerks-magistrates), G. L. c. 218, §§ 35 and 35A,1 do not authorize a subsequent rehearing of the clerk-magistrate's finding. They provide only that "the person against whom such complaint is made [with certain exceptions not here relevant], shall be given an opportunity to be heard in opposition to the issuance of process [based on such application]." G. L. c. 218, § 35A. We have had recent occasion to consider these provisions. In Bradford v. Knights, supra at 752-753, we concluded that judges of the BMC (and, by implication, of the District Court Department) have inherent authority to rehear denials of applications for criminal complaints by clerk-magistrates. We reached this result in the context of a complainant whose application for a complaint had been denied by a clerk-magistrate because such complainant lacks "further recourse." Id. at 753. We also stated: "If the person complained of believes that there was not probable cause to charge him with a crime, he may move to dismiss the complaint." Id. We now hold that the issuance of a complaint by a clerk-magistrate is not to be revisited by a further show cause hearing; the defendant's remedy is a motion to dismiss the complaint. The procedure to which we referred in the Bradford case, a motion to dismiss, is the appropriate and only way to challenge a finding of probable cause. After the issuance of a complaint, a motion to dismiss will lie for a failure to present sufficient evidence to the clerk-magistrate (or judge), see Commonwealth v. McCarthy, 385 Mass. 160 (1982), for a violation of the integrity of the proceeding, see Commonwealth v. O'Dell, 392 Mass. 445 (1984), or for any other challenge to the validity of the complaint.
The defendant contends that Bradford v. Knights, supra at 752, recognized that a judge may reconsider a clerk's decision to issue a complaint: "The inherent power of a court in a timely and regular way, which violates no other provision of law, to rehear and reconsider its own determinations at its discretion has long been recognized." The Bradford case, however, was concerned with the opportunity for a complainant, whose application for complaint had been denied, to obtain some type of review of that decision in the absence of any mechanism of review, rehearing, or appeal. A defendant against whom a complaint is issued does not lack the opportunity for review of that decision. "[H]e may...
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