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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. Vaidulas, 433
Supreme Judicial Court of Massachusetts, Franklin.
Argued
Decided
Judith Ellen Pietras, Assistant District Attorney,
for the Commonwealth.
Steven W. Panagiotes,
Present:
SPINA, J.
The
Commonwealth appealed from the postconviction order of a judge in the District
Court for a required finding of not guilty.
The order was entered after the judge determined posttrial a motion in
limine that he had taken under advisement before trial. Pursuant to the motion in limine, the judge
struck the testimony of a police officer who had arrested the defendant before
the officer completed the training requirements set forth in G.L.c. 41, §
96B. On appeal, the Commonwealth argues [433 Mass. 248] that (1) the officer was exempt from the requirements of the
statute at the time of the defendant's arrest, (2) the defendant lacks standing
to challenge the officer's authority, and (3) if the defendant has standing, the de facto officer doctrine
applies. We vacate the judge's order and
reinstate the jury's verdict because the officer's authority may not be
attacked collaterally in a criminal proceeding.
On
At the
time of the arrest, the officer had not completed the training required by
G.L.c. 41, § 96B. (FN1) Earlier, on
December 9, 1996, the chief of police of Athol, the officer's appointing
authority, had made a request pursuant to 550 Code Mass.Regs. § 3.02(8)(a)
(1993) that the officer be exempted from the requirement of § 96B. He obtained a ninety‑day exemption, the
maximum allowed at that time. (FN2)
On
September 15, 1998, eight days before trial, defense counsel moved in limine to
exclude the officer's testimony on [433
Mass. 249] the ground that the
officer was without authority to arrest the defendant because he failed to meet
the requirements of G.L.c. 41, § 96B.
The trial judge took the motion under advisement, then proceeded with
the trial and permitted the officer to testify.
Defense counsel did not object to the officer's taking the witness
stand.
The jury
of six returned a guilty verdict on September 24. After the judge dismissed the jury, defense
counsel reminded the judge of the motion in limine and requested that the judge
address the motion and set aside the verdict.
The judge, noting that he had agreed earlier to resolve the issue before
imposing any disposition, stated that, "based on the motion, and ... the
way the officer testified, I think that [defense counsel] certainly raised a
prima facie case that there was no authority to arrest [the defendant]."
On January
8, 1999, after a hearing, the judge allowed the defendant's motion in limine,
struck the arresting officer's testimony, and ordered that a required finding
of not guilty be entered. On January 13,
1999, the Commonwealth filed a notice of appeal "pursuant to
Mass.R.Crim.P. 15(a)(2)," as appearing in 422 Mass. 1501 (1996). On January 19, 1999, the Commonwealth filed
in the county court an application for leave to file an interlocutory
appeal. A single justice of this court
denied that application. There is no
appeal from that decision. See Cowell v. Commonwealth, 432 Mass. 1028,
740 N.E.2d 944 (2000). We transferred
the Commonwealth's appeal to this court on our own motion.
[1][2] 1. Procedural issues. The defendant argues that the only avenue of relief available to the Commonwealth is under
G.L.c. 211, § 3. Such relief is only
available where all other avenues of relief are foreclosed. See
Costarelli v. Municipal Court of the City of Boston, 367 Mass. 35, 41, 323
N.E.2d 859 (1975), quoting G.L.c. 211, § 3 ("the statutory power of
'general superintendence of all courts of inferior jurisdiction to correct and
prevent errors and abuses therein if no other remedy is expressly provided'
should be used sparingly, and should rarely be used in a case where some other
practical remedy is available").
[3] We
must first review the nature of the trial judge's postconviction order, as it
necessarily determines the procedural posture of the Commonwealth's
appeal. The purpose of a motion in
limine is "to prevent irrelevant, inadmissible or prejudicial matters from
being admitted in evidence." Commonwealth v. Lopez, [433 Mass. 250] 383 Mass. 497, 500 n. 2, 420 N.E.2d 319 (1981). While these motions are typically filed prior
to trial, we have previously held that they may be filed and heard during the
course of a trial as unforeseen exigencies often arise. See
Commonwealth v. Pina, 406 Mass. 540, 550, 549 N.E.2d 106, cert. denied, 498
U.S. 832, 111 S.Ct. 96, 112 L.Ed.2d 67 (1990). Regardless of when filed, we have frequently
expressed our preference for early rulings on motions in limine. See
Commonwealth v. Diaz, 383 Mass. 73, 81, 417 N.E.2d 950 (1981). This case, however, presents the unusual
scenario where the motion was filed timely, the challenged witness testified,
and the judge then granted the motion after the jury had returned a guilty
verdict.
The judge
acknowledged that the motion in limine was filed before trial, but despite the
fact that the witness testified, the judge stated that the motion was not
decided as of the time the jury returned their verdict. He determined that it could be treated as
either a "renewed" pretrial motion and therefore properly before the
court pursuant to Mass.R.Crim P. 13(a)(5), 378 Mass. 871 (1979), or a
postconviction motion and therefore subject to Mass.R.Crim.P. 30(a), (b), 378
Mass. 900 (1979). We disagree. The only proper basis on which the judge
could have granted the requested relief posttrial was through application of
rule 30(b).
[4][5]
Rule 13(a)(5) states that "[u]pon a showing that substantial justice so
requires, the judge or special magistrate may permit a pretrial motion which
has been heard and denied to be renewed."
Because the challenged witness testified, the motion in limine was, in
substance, denied. It could not be
renewed after trial because there is no mechanism to seek reconsideration after
trial of a decision under rule 13(a)(5).
The only means of revisiting after trial a matter raised in a motion in
limine is through a motion for postconviction relief under rule 30, or on
appeal.
[6] Rule
30 (a) cannot support the judge's action because by its express language, it is
limited to providing relief for "confinement or restraint ... imposed in
violation of the Constitution or laws of the United States or of the
Commonwealth of Massachusetts." It
is undisputed that the defendant was never sentenced. Absent a sentence that is somehow defective,
rule 30(a) has no application. See Commonwealth v. Christian, 429 Mass.
1022, 1023, 712 N.E.2d 573 (1999) (rule 30[a] "was not intended to provide
an avenue for plenary appellate review.
Instead, it was designed to enable defendants to challenge the legality
or the technical basis of a sentence").
[433 Mass. 251] Rule 30(b) provides authority for a judge, on motion, to grant a
"new trial at any time if it appears that justice may not have been
done." The judge's treatment of
the defendant's motion most closely approximated that of a motion filed under
rule 30(b). In effect, the judge
determined that justice had not been done because the officer should not have
been allowed to testify. He implicitly
granted the defendant a new trial on that basis, then dismissed the charge because the
Commonwealth could not meet its burden of proof without the officer's
testimony. The Commonwealth has a right
of appeal, pursuant to Mass.R.Crim.P. 30(c)(8), as appearing in 420 Mass. 1502
(1995), from an order granting postconviction relief under rule 30(b). See
Latimore v. Commonwealth, 417 Mass. 805, 808, 633 N.E.2d 396 (1994)
("Rule 30 is the source of the Commonwealth's right to appeal from rulings
on postconviction motions, a right the Commonwealth did not enjoy prior to the
rule's adoption in 1979").
Additionally, we have construed a motion under rule 30(b) as a
"motion for appropriate relief under the Massachusetts Rules of Criminal
Procedure" and therefore the Commonwealth has a right to appeal pursuant
to G.L.c. 278, § 28E. See Commonwealth v.
Amirault, 415 Mass. 112, 114, 612 N.E.2d 631 (1993). Because the Commonwealth has an available
means of appeal, review pursuant to G.L.c. 211, § 3, is not available. (FN3)
[7] The
single justice correctly denied the Commonwealth's application for leave to
take an interlocutory appeal pursuant to Mass.R.Crim.P. 15(c), as appearing in
422 Mass. 1501 (1996). That rule
provides that "[a]ny motion the determination of which may be appealed
pursuant to this rule shall be decided by the judge before the defendant is
placed in jeopardy under established rules of law." See Reporters' Notes to Mass.R.Crim.P. 15,
Mass.Ann.Laws, Rules of Criminal Procedure at 182 (Lexis 1997) ("In order
to preserve the Commonwealth's right to appeal, the rule requires that the
judge's ruling on the [433 Mass. 252] motion be made before the defendant
is placed in jeopardy"). Here, the
judge did not decide the motion until after the jury had returned its guilty
verdict. Because jeopardy attached when
the jury was sworn, Commonwealth v.
Super, 431 Mass. 492, 496, 727 N.E.2d 1175 (2000), rule 15(c) provided no
basis to challenge the judge's order.
[8] The
defendant contends that the Commonwealth did not file a proper notice of appeal
because it was captioned under rule 15(a)(2).
The defendant's argument elevates form over substance. It is clear that the Commonwealth, uncertain
how to proceed based on the unusual timing and inappropriate nomenclature of
the judge's order, filed its notice of appeal pursuant to rule 15(a)(2) out of
an abundance of caution. In its
application for an interlocutory appeal, the Commonwealth asserted that the
appeal should be considered pursuant to rule 30, but explained that it was
submitting its application for an interlocutory appeal on the basis of the
original posture of the defendant's motion (i.e., a motion in limine to exclude
evidence). The Commonwealth's notice of
appeal was filed timely, and the defendant has not shown any prejudice from the
reference to rule 15(a)(2).
The
Commonwealth's appeal is properly before us under Mass.R.Crim.P. 30(c)(8), and
G.L.c. 278, § 28E. Resort to our superintendence powers under G.L.c. 211, § 3,
is not necessary.
[9] 2. Collateral attack. The Commonwealth argues that the defendant
lacks standing to challenge the authority of an officer who had not met the
training requirement of § 96B. It is
clear that the import of the defendant's motion in limine was an attack on the
officer's title to office. That issue may
not be raised in the defendant's criminal proceeding, for reasons that we shall explain. The issue of standing to challenge the
officer's title to office, then, has no relevance.
[10][11]
Officer Willhite had been appointed to the position of full time police officer
in the town of Athol and was acting at least with de facto authority. (FN4)
A de facto officer is "one whose title is not good in law, but who
is in fact in the unobstructed possession of an office and discharging its
duties in full view of the [433
Mass. 253] public, in such manner
and under such circumstances as not to present the appearance of being an
intruder or usurper" (citation omitted). United States v. Royer, 268
U.S. 394, 397, 45 S.Ct. 519, 69 L.Ed. 1011 (1925). We have recognized the exercise of de facto
authority by a variety of governmental officials. See, e.g.,
Barnes v. Peck, 283 Mass. 618, 187 N.E. 176 (1933) (water commissioner);
Welsh v. Briggs, 204 Mass. 540, 549, 90 N.E. 1146 (1910) (tax
assessor); Clark v. Easton, 146 Mass. 43, 14 N.E.
795 (1888) (railroad commissioner); Sheehan's Case, 122 Mass. 445, 446, 1877
WL 10172 (1877) (judge); Petersilea v. Stone, 119 Mass. 465 (1876)
(constable); Fowler v. Bebee, 9 Mass. 231 (1812)
(sheriff). "So far as the validity
of their action is concerned there is no difference between an officer de facto
and an officer de jure." Welsh v. Briggs, supra. See
Commonwealth v. Wotton, 201 Mass. 81, 84, 87 N.E. 202 (1909).
[12] A
public officer's right and title to office may not be attacked collaterally,
but only in a direct action instituted to determine the validity of his claim
to office. See Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37, 75,
371 N.E.2d 728 (1977); Commonwealth v. DiStasio, 297 Mass. 347,
351, 8 N.E.2d 923, cert. denied, 302 U.S. 683, 58 S.Ct. 50, 82 L.Ed. 527 and
302 U.S. 759, 58 S.Ct. 370, 82 L.Ed. 587 (1937). There are two reasons for this rule. The first is "to ensure that public
officials have a full opportunity to defend against a challenge in a proceeding
where the merits of a particular public matter are not also at issue."
Boston Edison Co. v. Boston Redevelopment Auth., supra at 75, 371
N.E.2d 728. The second is to protect
the public's reliance on an officer's authority and to ensure the orderly
administration of government. Id. See Sheehan's Case, supra.
(FN5) An officer who fails to
complete the requisite training satisfactorily is subject to "removal by
the appointing authority." G.L.c.
41, § 96B. The Attorney General also may
seek removal pursuant to G.L.c. 249, § 9. See Commonwealth v. Allen, 128 Mass. 308 (1880) (chief of police
removed);
Commonwealth v. Hawkes, 123 Mass. 525 (1878) (removal of judge
mentioned in Sheehan's Case, supra). There is no authority for a defendant to
institute such a proceeding.
[13] There
are circumstances where a defendant properly may challenge the authority of a
police officer to act. One such [433 Mass. 254] instance is the authority of an officer to make a warrantless
arrest outside his jurisdiction absent fresh and continued pursuit for a crime
committed in the officer's presence. See Commonwealth v. Grise, 398 Mass. 247,
249, 496 N.E.2d 162 (1986). Here, the
defendant does not challenge the range of the officer's authority to arrest,
but the officer's authority to arrest in any circumstances because he was not
properly a police officer. Such an
attack may not be made secondarily in a criminal proceeding. See
Brierly v. Walsh, 299 Mass. 292, 294‑295, 12 N.E.2d 827 (1938);
Commonwealth v. DiStasio, supra. We hold that the defendant may not collaterally
attack in his criminal prosecution the authority of his arresting officer on
the basis of that officer's failure to complete the training requirements of
G.L.c. 41, § 96B.
Our
holding does not leave a defendant without remedy to challenge an officer's
failure to complete the required training.
The defendant may impeach the officer at trial with his failure to
complete the training, as occurred here.
While the officer's lack of training to perform a field sobriety test
may not render his testimony inadmissible, it clearly bears on the weight of
his testimony. See Commonwealth v. Shea, 356 Mass. 358, 361, 252 N.E.2d 336 (1969)
(denying motion to strike officer's testimony after evidence of his lack of
knowledge and skill in administering breathalyzer tests was demonstrated on
cross‑examination).
[14] Where
an individual is harmed by inappropriate, inadequate or negligent training of
police officers, the appropriate remedy lies in a direct suit against either
the supervising authority or the municipality under the Massachusetts Tort
Claims Act, see e.g., Dobos v. Driscoll,
404 Mass. 634, 537 N.E.2d 558, cert. denied sub nom. Kehoe v. Dobos, 493 U.S.
850, 110 S.Ct. 149, 107 L.Ed.2d 107 (1989), or pursuant to 42 U.S.C. § 1983
(1994). See Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412
(1989) (determining that inadequacy of training may serve as basis of § 1983
liability where failure to train amounts to "deliberate indifference"
to constitutional rights of person with whom police may come into contact).
We vacate
the judge's order. The jury's verdict is
reinstated, and the case is remanded to the District Court for sentencing.
So ordered.
(FN1.) General Laws c. 41, § 96B, provides in
relevant part: "Every person who
receives an appointment to a position on a full‑time basis in which he
will exercise police powers in the police department of any city or town,
shall, prior to exercising police powers, be assigned to and satisfactorily
complete a prescribed course of study approved by the department of criminal
justice training....
"Failure
of an appointed person to comply with the provisions of this section prior to
his exercising police powers, shall result in the appointed person's removal by
the appointing authority, provided said person has not been exempted therefrom
by said department as herein provided.
Failure of an appointed person to satisfactorily complete the prescribed
course of study may result in his removal by the appointing authority."
(FN2.) Effective January 1, 1997, 550 Code
Mass.Regs. § 22, was amended to provide a maximum exemption period of 270 days,
but it is undisputed that the chief of police never requested an additional
exemption, and that on the date of the arrest, the officer was working as a
full‑time police officer beyond the expiration of his ninety‑day
exemption period.
(FN3.) The judge ordered entry of a required
finding of not guilty. Although the
order draws on the language of Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979),
relief under that rule can only be granted where the defendant has renewed a
motion for a required finding made during the trial. The defendant did move for a required finding
of not guilty at the close of the Commonwealth's case, but the motion was not
renewed at the close of all the evidence.
Had we viewed the motion as a renewed motion for a required finding of
not guilty, and treated the judge's order as made under rule 25(b)(2), that
order would have been appealable pursuant to Mass.R.Crim.P. 25(c)(1), as
appearing in 389 Mass. 1107 (1983).
(FN4.) The Attorney General, in response to an
inquiry from the Massachusetts Criminal Justice Training Council, has opined
that an officer who has not yet completed his training should nevertheless be
afforded "permanent" employee status.
See Rep. A.G., Pub. Doc. No. 12,
at 526 (1978).
(FN5.) Other States that have applied the de
facto officer doctrine to police officers have done so for similar
reasons. See State v. Whelan, 103 Idaho 651, 651 P.2d 916 (1982);
State v. Driscoll, 455 N.W.2d 916 (Iowa 1990); Bogard v. Commonwealth, 687
S.W.2d 533 (Ky.Ct.App.1984), cert. denied, 474 U.S. 843, 106 S.Ct. 130, 88
L.Ed.2d 106 (1985); State v. Oren, 160 Vt. 245, 247, 627 A.2d
337 (1993).