Foley v. Lowell Div. of Dist. Court Dept. of Trial Court

• Decision Date: 15 December 1986
• Citation: 501 N.E.2d 1151,398 Mass. 800
• Parties: . Supreme Judicial Court of Massachusetts, Suffolk
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1151

501 N.E.2d 1151

398 Mass. 800

Michael J. FOLEY v. LOWELL DIVISION OF the DISTRICT COURT DEPARTMENT OF the TRIAL COURT.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Oct. 10, 1986.

Decided Dec. 15, 1986.

John Reinstein, Boston, for plaintiff.

Paula J. DeGiacomo, Asst. Atty. Gen., for defendant.

Before HENNESSEY, C.J., and LIACOS, ABRAMS and LYNCH, JJ.

LYNCH, Justice.

The plaintiff, Michael J. Foley, brought this action before a single justice of this court under G.L. c. 211, § 3 (1984 ed.), seeking dismissal of a complaint against him for assault and battery on a police officer. After a hearing, the single justice denied relief, and Foley appealed to the full court. Foley contends that as a result of the action of the judge in the District Court he has been subjected to double jeopardy, abuse of process, and cruel and unusual punishment.

The allegations of the complaint filed under G.L. c. 211, § 3, are as follows: On February 5, 1983, Foley was assaulted by members of the Lowell police department on February 7, 1983, a criminal complaint was issued against him for assault and battery on a police officer; the case was called for trial on March 2, 1983, in the Lowell Division of the District Court Department; after hearing the testimony of two of the officers involved in the incident, the judge interrupted the trial and met with counsel in chambers; the judge suggested that Foley execute a waiver of civil claims against the police officers in exchange for a continuance without a finding and dismissal after one year. Foley refused to accept the judge's offer. The judge then declined to hear the remainder of the Commonwealth's case and directed Foley to testify regarding the circumstances of his arrest. After Foley testified, the judge announced that the case was concluded. The record reveals that the case was continued until March 1, 1984, for findings and disposition under the following terms: "Both parties prepare findings of facts. Defendant prepare releases for the police. Conditions of continuance: (1) defendant to stay out of trouble and (2) defendant not file civil action during the continuance period. If at the end of one year no trouble, cases to be dismissed and releases from liability given to police."

In March, 1984, a default was entered against Foley for failure to appear for disposition which was removed on May 9, 1985. Foley then filed a motion to dismiss the complaint and an affidavit. The motion was heard and denied on July 25, 1985. According to Foley, the judge found him guilty without taking further evidence because he refused to execute a written release waiving his right to bring a civil action against the police officers. On the same day, Foley filed a de novo appeal to the jury-of-six session.

The action before us seeks a declaration that the District Court judge acted unlawfully in requiring Foley to waive his right to bring a civil action as a condition to the continuing of the case without a finding and an order dismissing the complaint. The defendant moved to dismiss this action for failure to state a claim upon which relief could be granted, arguing that any errors committed during the bench trial were rendered immaterial by Foley's appeal to the jury-of-six session of the District Court, and that Foley's objections to continuing the case without a finding had to be pressed in the jury-of-six session by way of a motion to dismiss. On August 14, 1985, the single justice, after hearing, denied relief under G.L. c. 211, § 3.

Following the single justice's denial, Foley filed a motion to dismiss in the jury session of the District Court which was denied. Foley then filed a motion for relief from judgment pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), in the single justice session which sought to vacate the single justice's order of August 14, 1985, on the grounds, inter alia, that in light of the denial of his motion in the jury session he had no effective remedy against the continued prosecution in the District Court. Foley's motion for relief from judgment was denied by the single justice on November 4, 1985.

1. At the time Foley's complaint for relief under G.L. c. 211, § 3, was filed in the county court, he had already filed an appeal to the jury-of-six session to obtain a trial de novo. We have emphasized that relief under G.L. c. 211, § 3, is extraordinary and may not be sought as a substitute for normal appellate review. Soja v. T.P. Sampson Co., 373 Mass. 630, 631, 369 N.E.2d 975 (1977). Where a petitioner can raise his claim in the normal course of trial and appeal, relief will be denied. C. & C. Bookshops, Inc. v. Commonwealth, 388 Mass. 1009, 446 N.E.2d 711 (1983). Whitmarsh v. Commonwealth, 366 Mass. 212, 215-216, 316 N.E.2d 610 (1974). Foley should have filed a motion to dismiss the complaint in the jury session before bringing his complaint under G.L. c. 211, § 3. As in C. & C. Bookshops, Inc. v. Commonwealth, supra, "[n]o such motion had been filed at the time the single justice denied the plaintiff[ ] relief and dismissed the complaint brought under G.L. c. 211, § 3." Id. There was no error in denying relief under G.L. c. 211, § 3 2. Foley also asserts that the denial of the motion to dismiss filed in the jury-of-six session constituted "newly discovered evidence" under Mass.R.Civ.P. 60(b)(2), which required the single justice to vacate his judgment denying relief under G.L. c. 211, § 3. Alternatively, Foley maintains that he is entitled to relief under Mass.R.Civ.P. 60(b)(6), which provides that a court may relieve a party from judgment for "any other reason justifying relief from the operation of the judgment." We disagree.

Rule 60(b)(2) is wholly inapplicable to the facts of this case. Rule 60(b)(2) grants relief by reason of "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial." It cannot be said to have application where there has been no trial on the merits and no evidence has been presented to the court. Flett v. W.A. Alexander & Co., 302 F.2d 321, 324 (7th Cir.), cert. denied, 371 U.S. 841, 83 S.Ct. 71, 9 L.Ed.2d 77 (1962). Brown v. Pennsylvania R.R., 282 F.2d 522, 526-527 (3d Cir.1960), cert. denied, 365 U.S. 818, 81 S.Ct. 690, 5 L.Ed.2d 696 (1961). See Reporters' Notes to Mass.R.Civ.P. 60(b)(2), Mass.Ann.Laws, Rules of Civil Procedure at 586 (1982).

As to Foley's claim that relief from judgment should be granted under rule 60(b)(6), providing for relief for "any other reason justifying relief from the operation of the judgment," we see no need to disturb the single justice's ruling.

The basis of Foley's assertion before the single justice and the full court is that his prosecution and conviction were barred by the State and Federal Constitutions. However, as we have long held, "[t]he appeal from the judgment of the District Court vacate[s] that judgment, and render[s] immaterial ... all ... errors and irregularities in the proceedings there." Enbinder v. Commonwealth, 368 Mass. 214, 217, 330 N.E.2d 846, cert. denied, 423 U.S. 1024, 96 S.Ct. 467, 46 L.Ed.2d 398 (1975), quoting Commonwealth v. Holmes, 119 Mass. 195, 199 (1875). See Commonwealth v. Duquette, 386 Mass. 834, 846-847, 438 N.E.2d 334 (1982); Commonwealth v. Pope, 4 Mass.App.Ct. 854, 854, 357 N.E.2d 329 (1976), and cases cited. Any errors which may have contaminated the bench trial were effectively expunged by the availability of a de novo trial in the District Court...