Department of Revenue v. Sorrentino

• Decision Date: 15 August 1990
• Citation: 557 N.E.2d 1376,408 Mass. 340
• Parties: DEPARTMENT OF REVENUE v. Gerardo SORRENTINO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1376

557 N.E.2d 1376

408 Mass. 340

DEPARTMENT OF REVENUE v. Gerardo SORRENTINO.

Supreme Judicial Court of Massachusetts Suffolk.

Argued May 8, 1990.

Decided Aug. 15, 1990.

Kevin S. Nixon, Arlington (Henry F. Owens, III, Boston, with him), for defendant.

Rosanna Cavallaro, Asst. Atty. Gen., for Dept. of Revenue.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

O'CONNOR, Justice.

In this G.L. c. 209C (1988 ed.) action, a District Court judge found the defendant to be the father of a child born out of wedlock, and ordered the payment of child support. The defendant appealed to the Appeals Court. See Department of Revenue v. Jarvenpaa, 404 Mass. 177, 180-181, 534 N.E.2d 286 (1989). We transferred the appeal to this court on our own initiative, and now hold that the defendant is entitled to a retrial in the District Court.

Before this civil action under G.L. c. 209C was begun, a criminal complaint against the defendant had been issued under G.L. c. 273, § 12 (1984 ed.), alleging paternity, and under c. 273, § 15 (1984 ed.), alleging nonsupport. After the criminal complaint was issued, but before it was tried, the Legislature enacted St.1986, c. 310, which repealed c. 273, § 12, amended c. 273, § 15, and inserted G.L. c. 209C in the General Laws. Then, following a District Court bench trial, a judge dismissed the c. 273, § 12, charge, but found the defendant guilty of nonsupport in violation of c. 273, § 15, and ordered the payment of child support pendente lite.

The defendant appealed his criminal conviction to the jury-of-six session of the Boston Municipal Court. Before the beginning of the defendant's de novo criminal proceedings in the Municipal Court, however, the Commonwealth entered a nolle prosequi on the c. 273 charge so that a complaint under the newly enacted c. 209C could proceed against the defendant. The civil proceeding then went to trial. The fact that the case against the defendant began under the repealed criminal statute but was ultimately conducted under the new civil one is the source of most of the allegations of error in this case.

After the criminal case under G.L. c. 273, § 15, was nol prossed, the defendant moved for dismissal of the civil action brought pursuant to c. 209C. The motion was grounded on an assertion that, inasmuch as the "[d]efendant's rights under ch. 273 section 15" had already been adjudicated as a result of the criminal bench trial and the defendant had exercised his right to a de novo appeal, the defendant could not be tried under G.L. c. 209C. The motion to dismiss was denied. On appeal, the defendant argues that, if the de novo appeal had proceeded, he would have had a right to a jury trial and other advantages of which he was deprived by trial of the issues under c. 209C. Chapter 209C, § 12, for instance, provides that "[i]n actions under this chapter, the trial shall be by the court without a jury." In Department of Revenue v. Jarvenpaa, supra at 189, 534 N.E.2d 286, we held that provision to be constitutional.

We assume, without deciding, that an objection to the nolle prosequi of the criminal case can properly be raised in the context of an appeal from a judgment rendered in the civil adjudication of the defendant's paternity, but, nonetheless, find the argument to be without merit. Massachusetts Rule of Criminal Procedure 16(a), 378 Mass. 885 (1979), provides that "[a] prosecuting attorney may enter a nolle prosequi of pending charges at any time prior to the pronouncement of sentence." However, "[a]fter jeopardy attaches, a nolle prosequi entered without the consent of the defendant shall have the effect of an acquittal of the charges contained in the nolle prosequi." Mass.R.Crim.P. 16(b), 378 Mass. 885 (1979). The power to enter a nolle prosequi is not contingent upon approval by the court. Commonwealth v. Brandano, 359 Mass. 332, 335, 269 N.E.2d 84 (1971).

The entry of a nolle prosequi in the defendant's c. 273 criminal case was a proper exercise of the prosecutor's power and did not result in an acquittal. The nolle prosequi was entered before jeopardy attached. Although a bench trial had already been held, the judgment entered by the District Court at the conclusion of that trial was vacated by the defendant's appeal of his conviction to the jury-of-six session of the Boston Municipal Court, Commonwealth v. Chase, 385 Mass. 461, 468, 432 N.E.2d 510 (1982), and jeopardy would only attach at the commencement of the de novo trial. The pendente lite order of child support was not vacated on appeal, id.; Commonwealth v. Lobo, 385 Mass. 436, 442, 432 N.E.2d 496 (1982), but such an order is by its nature temporary and therefore is not the pronouncement of sentence within the meaning of rule 16(a). The subsequent civil action was not barred by the earlier nolle prosequi, see Commonwealth v. Jones, 9 Mass.App.Ct. 103, 112, 399 N.E.2d 1087 (1980), aff'd in part, vacated in part, 382 Mass. 387, 416 N.E.2d 502 (1981); G.L. c. 209C, § 22(b) ("A proceeding under chapter ... two hundred and seventy-three ... shall not be a bar to any proceeding under this chapter"), and it makes no difference that, under c. 209C, the defendant was not entitled to a jury trial.

The defendant also argues on appeal that the trial judge erroneously denied his motion for a required finding in his favor. The argument is without merit. The mother of the child testified that approximately nine months before the child was born she had sexual relations with the defendant and that she had no relations with anyone else around that time. That evidence was sufficient to establish clearly and convincingly, consistent with the plaintiff's burden of proof, that the defendant was the child's father.

We come now to the defendant's contention that, even if he is not entitled to judgment in his favor, he is entitled to a new trial based on a reversible evidentiary error. In connection with the earlier criminal proceedings under G.L. c. 273, the defendant voluntarily submitted to a human leukocyte antigen (HLA) test. The results of this paternity test were inculpatory and were admitted in evidence over the defendant's objection at the subsequent civil trial. The defendant asserts two reasons to conclude that admission of this evidence was erroneous. First, the defendant argues that exclusion of the evidence was compelled because the requirements of c. 209C, § 17, for the admissibility of such evidence were not followed. Second, the plaintiff failed to lay a proper foundation for its admission. We address these arguments in turn.

General Laws c. 209C, § 17, states in part: "In an action to establish paternity, the court may, on the motion of any party or upon its own motion, order the mother, the child, and the putative father to submit to one or more blood or genetic marker tests, to be performed by a duly qualified physician or other such expert. The report of the results of blood grouping or genetic marker tests, including a statistical probability of the putative father's paternity based upon such tests, shall be admissible in evidence and shall be weighed along with other evidence of the...