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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Tripolone, 44 Mass.App.Ct. 23 (1997)
Appeals Court of Massachusetts,
No. 96‑P‑1224.
Argued
Decided
Lewis A. Armstead, Jr., Assistant District Attorney,
for Com.
John L. Holgerson, Committee for Public Counsel
Services,
Before
ARMSTRONG, GILLERMAN and JACOBS, JJ.
GILLERMAN, Justice.
The single
question before us is whether the defendant was entitled to a hearing pursuant
to G.L. c. 218, § 35A (FN1) prior to the issuance of a misdemeanor complaint
against him for an alleged violation of a G.L. c. 209A 7 abuse
[44 Mass.App.Ct. 24] prevention
order. (FN2) We hold that he was entitled to such a
hearing, and we affirm the judgment dismissing the complaint.
1. Background. The Commonwealth and the defendant filed a
statement of agreed facts, which we summarize.
On
[44 Mass.App.Ct. 25] The defendant moved to dismiss the complaint on December 15,
1994, arguing, in part, that the complaint had issued in violation of his right
to a hearing pursuant to G.L. c. 218, § 35A.
After
intervening procedural events not material to this opinion, the motion to
dismiss was allowed on February 28, 1995, on the ground that the defendant was
entitled to a hearing prior to the issuance of the complaint. The Commonwealth did not file a notice of
appeal, but after review by the district attorney's office, the
On
On August
25, 1995, the defendant moved to dismiss the second complaint, arguing, in
part, that the complaint had issued in violation of his right to a hearing
pursuant to G.L. c. 218, § 35A.
After
another round of intervening procedural events not material to this opinion,
the defendant's motion to dismiss was heard and allowed on
Both the Commonwealth
and the defendant appealed. The [44 Mass.App.Ct. 26] defendant claimed, and he argues in
this court, that the dismissal should be with prejudice.
[1] 2. Discussion. The Commonwealth argues first that the
required review of the defendant's criminal record, see note 1, par. 2, supra, "would have shown"
(FN5) the existence of a pending rape indictment in the Bristol Superior
Court. The rape indictment is admittedly
an afterthought, see note 5, supra,
which was not argued or considered either when the complaint issued or when the
motion to dismiss was argued and allowed.
It cannot provide the basis for claiming the availability of the
statutory exemption. (FN6)
[2] The
Commonwealth argues that the 1992 amendment to G.L. c. 218, § 35A, St.1992, c.
188, § 6, requiring the court and named officers to consider the records
contained in the Statewide domestic violence record‑keeping system
maintained by the office of the Commissioner of Probation, demonstrates the
Legislature's "will to treat violations of abuse prevention orders as
imminent threats to the safety of the individuals involved." Even if true, that history has no bearing on
this case, for (i) the judge found on the basis of the agreed facts, that the
complaint in this case issued without a hearing only because of the directive[44 Mass.App.Ct. 27] requiring that result, and
(ii) the violation of the abuse prevention order is merely alleged, not
shown. The rationale of the directive‑‑that
imminent threat of bodily injury is to be
presumed whenever there is an
allegation of a violation of a 209A order‑‑conflicts directly
with the statutory requirement that there be a hearing unless there is a
showing sufficient to satisfy the judge that one of the statutory exceptions is
available. The directive is especially
pernicious because it precludes consideration of alternative procedures prior
to the issuance of criminal process. See Gordon v. Fay, 382 Mass. 64, 69‑70,
413 N.E.2d 1094 (1980) ( "the implicit purpose of the § 35A hearings is to
enable the court clerk to screen a variety of minor criminal or potentially
criminal matters out of the criminal justice system through a combination of
counseling, discussion, or threat of prosecution").
[3] In
this case, then, the statute has been violated.
(FN7) Given the fact that § 35
provides no remedy for the unjustified denial of a hearing, the Supreme
Judicial Court in Commonwealth v. Lyons,
397 Mass. 644, 647, 492 N.E.2d 1142 (1986), considered the question, "what
consequences the Legislature intended to follow from a violation of §
35A." In the course of its
discussion of this issue (in the context of a motion to suppress evidence) the
court, after reviewing the statutory history of § 35A, observed that (i) § 35A
"guarantees a potential defendant (barring exigent circumstances) the
right to notice and an opportunity to be heard in opposition to issuance of
process," and (ii) "[w]e might reasonably infer from the history of §
35A that a defendant may be entitled to dismissal of the complaint where the
opportunity for a § 35A hearing as to that complaint has been denied. The procedure could then start anew, and the
defendant would have a chance to be heard before process [44 Mass.App.Ct. 28]
would be issued." (FN8)
Ibid. See also Gordon v. Fay, 382 Mass. at 69 n. 8,
413 N.E.2d 1094. (FN9)
We
conclude that the directive issued to the clerk magistrate in the Taunton
District Court is inconsistent with the procedure mandated by § 35A, and that
the defendant was unjustifiably deprived of a hearing prior to the issuance of
the misdemeanor complaint. Therefore, we
affirm the judgment dismissing the complaint, without prejudice. (FN10)
So ordered.
(FN1.) General Laws c. 218, § 35A, as amended
through St.1992, c. 188, § 6, provides:
"If a
complaint for a misdemeanor is received by a district court, or by a justice,
associate justice or special justice thereof, or by a clerk, assistant clerk,
temporary clerk or temporary assistant clerk thereof under section thirty‑two,
thirty‑three or thirty‑five, as the case may be, the person against
whom such complaint is made, shall, if not under arrest for the offence for
which the complaint is made, upon request in writing, seasonably made, be given an opportunity to be heard
personally or by counsel in opposition to the issuance of any process based on
such complaint.
"If
such complaint is received, the court, or any of said officers referred to in
the preceding paragraph, shall, unless there is an imminent threat of bodily
injury, of the commission of a crime or of flight from the commonwealth by the
person against whom such complaint is made, give to said person, if not under
arrest for the offense for which the complaint is made, notice in writing of
such complaint; and said person shall be given an opportunity to be heard
in opposition to the issuance of process as provided in the first paragraph. The court or other officer referred to in
the preceding paragraph shall consider the named defendant's criminal record
and the records contained within the statewide domestic violence record keeping
system maintained by the office of the commissioner of probation in determining
whether an imminent threat of bodily injury exists. Unless a citation as defined in section one
of chapter ninety C has been issued, notice shall also be given of the manner
in which he may be heard in opposition as provided herein.
"The
court, or said officer thereof, may upon consideration of the evidence cause
process to be issued unless there is no probable cause to believe that the
person who is the object of the complaint has committed the offense charged.
"The
term district court as used in this section shall include the Boston municipal
court department" (emphases added).
(FN2.) General Laws c. 209A, § 7, inserted by
St.1983, c. 678, § 5, provides, in part, that any violation of an abuse
prevention order "shall be punishable by a fine of not more than five
thousand dollars, or by imprisonment for not more than two and one‑half
years in a house of correction, or by both such fine and imprisonment."
(FN3.) The 209A abuse prevention order ordered
the defendant, inter alia, "not to contact the [complainant] ... by
telephone, in writing, or otherwise...."
(FN4.) The directive, issued by the First
Justice to the clerk magistrate, dated November 1, 1990, states, in full, as
follows:
"In
order to expedite the handling of this type of Complaint [i.e., complaints for
violation of 209A orders] please implement the following:
"When
an application for a Complaint for a violation of a 209A order is received in
the Clerk's Office the Complaint should issue forthwith without the necessity
of a Show Cause Hearing.
"I
am satisfied that the prior issuance of a 209A order in conjunction with the
allegation of its violation provides sufficient grounds to consider the
situation to be an imminent threat of bodily injury.
"Thank
you for your cooperation."
(FN5.) Evidence of the pending rape indictment
was the subject of a Commonwealth motion, filed in this court for the first
time, to expand the record. That
indictment was not brought before the judge who allowed the second application
for a complaint, and he did not consider it.
On the contrary, the judge stated that he considered only those facts
appearing in the statement of agreed facts, and there is no reference to the
rape indictment in that statement. Thus,
the rape indictment was not part of the record in this case, and could not have
been included in the appendix even if the motion to expand the record had been
presented below. See Mass.R.A.P. 18, 378
Mass. 940 (1979) (appendix is to be prepared from the record in the case).
(FN6.) The motion to expand the record, note
5, supra, was first presented to the
single justice who allowed the motion "subject to possible further action
by the panel assigned to decide the case." For the reasons stated in note 5, supra, and in the text, the panel
declines to consider the proffered indictment.
(FN7.)
Given that the alleged violation of the abuse prevention order occurred on
November 7, 1994, and the application for the complaint at issue in these
proceedings was not filed until August 8, 1995, seeking a hearing and neither a
summons nor an arrest warrant, the Commonwealth can make no claim (as it
appears to do) that the statutory exception for "an imminent threat of
bodily injury" is available.
Moreover, the statement of agreed facts, upon which this case was tried,
makes no mention of any such imminent threat.
See Commonwealth v. One 1986
Volkswagen GTI Automobile, 417 Mass. 369, 370 n. 1, 630 N.E.2d 270 (1994)
("[t]he theory of law on which by assent a case is tried cannot be
disregarded when the case comes before an appellate court for review").
(FN8.) The court in Lyons, denying the motion to suppress, held that evidence obtained
as a result of an unlawful § 35A procedure is not automatically tainted; some significant prejudice arising out of the
procedure that occurred must be demonstrated.
(FN9.) The Commonwealth's further argument‑‑that
the history of § 35A is evidence of the Legislature's intent to expedite the
procedure which brings allegations of violations of 209A orders to the
attention of the courts‑‑does not address the issue in this case
(whether or not that history is accurately summarized).
Finally,
the Commonwealth's argument that abuse prevention orders are impliedly exempt
from the hearing requirements of § 35A has no basis in the provisions of that
section, and we reject the argument.
(FN10.) We see no basis for dismissing the
complaint with prejudice, and the Commonwealth may start the proceedings
"anew." See Lyons, supra at 647, 492 N.E.2d 1142.