Commonwealth v. Rosa ( 2023 )


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    SJC-13277
    COMMONWEALTH   vs.   ROBERTO ROSA & another.1
    Suffolk.     October 7, 2022. - February 24, 2023.
    Present (Sitting at Plymouth): Budd, C.J., Gaziano, Lowy,
    Cypher, Kafker, Wendlandt, & Georges, JJ.
    Practice, Criminal, Complaint, Dismissal, Delay in commencement
    of prosecution, Interlocutory appeal, District attorney,
    Judicial discretion. Constitutional Law, Separation of
    powers.
    Civil action commenced in the Supreme Judicial Court for
    the county of Suffolk on November 22, 2021.
    The case was reported by Wendlandt, J.
    Darcy Jordan, Assistant District Attorney, for the
    Commonwealth.
    Esther J. Horwich for Roberta Rosa.
    GAZIANO, J.    The defendant's trial for operating a motor
    vehicle while under the influence of alcohol and other related
    charges was continued three times because the prosecutor was not
    1 Dorchester Division of the Boston Municipal Court
    Department.
    2
    ready for trial.2   Two of these continuances were due to the
    unavailability of the Commonwealth's key witness, the State
    police trooper who had arrested the defendant.    When the witness
    was unavailable for a third time, the defendant moved to dismiss
    for lack of prosecution and requested that the Commonwealth be
    required to file a motion to vacate the dismissal if it chose to
    refile the case.    The judge granted the defendant's motion and
    dismissed the case without prejudice.   The order of dismissal
    also required the Commonwealth to file a motion to vacate if it
    decided to proceed with the prosecution of the case.    The
    Commonwealth then sought extraordinary relief in the county
    court, pursuant to G. L. c. 211, § 3, on the ground that the
    judge's order violated the district attorney's constitutional
    authority to choose which cases to prosecute.    A single justice
    reserved and reported the case to the full court.
    We conclude that the judge's decision to require the
    Commonwealth to seek court approval before refiling charges was
    an abuse of discretion.   Article 30 of the Massachusetts
    Declaration of Rights protects a prosecutor's right to decide
    whether to prosecute a defendant and for which offenses; a court
    may not impede the exercise of that right by imposing an
    2 Although the Commonwealth commenced this action by filing
    a petition in the county court, for convenience we refer to the
    respondent as the "defendant."
    3
    additional requirement on the prosecution before it can refile
    the charges.
    1.   Background.     On January 2, 2020, a complaint issued in
    the Boston Municipal Court charging the defendant with operating
    a motor vehicle while under the influence of alcohol, G. L.
    c. 90, § 24 (1) (a) (1); negligent operation of a motor vehicle,
    G. L. c. 90, § 24 (2) (a); possession of an open container of
    alcohol in a motor vehicle, G. L. c. 90, § 24I; and a marked
    lanes violation, G. L. c. 89, § 4A.     A jury trial was scheduled
    for February 27, 2020.
    On what would have been the first day of trial, the
    Commonwealth's request for a continuance was allowed because its
    key witness, the State police trooper who had stopped and
    arrested the defendant, was unavailable, as she had been
    summonsed to appear in a different court.    The case then was
    rescheduled two more times due to the state of emergency arising
    from the COVID-19 pandemic.     Thereafter, on August 4, 2020,
    trial again was continued because the Commonwealth was not ready
    for trial, and the defendant's motion to dismiss was denied.      A
    jury-waived trial was scheduled for September 4, 2020.      On that
    date, the Commonwealth answered not ready for trial because the
    State police trooper was on vacation.    Again, the defendant's
    motion to dismiss was denied.     A jury-waived trial was
    rescheduled for November 9, 2020, and, on the scheduled day,
    4
    trial again was continued.    A jury trial subsequently was
    scheduled for March 8, 2021, but was rescheduled because there
    were no jurors.     For reasons not indicated in the record, on
    May 13, 2021, the jury trial was continued to July 7, 2021, and,
    on that date, trial again was continued, this time to
    October 12, 2021.    By that point, four Boston Municipal Court
    judges had allowed continuances of the trial.
    On the morning of October 12, 2021, the Boston Municipal
    Court judge who had allowed the continuance on November 9, 2020,
    presided.   When the judge asked whether the Commonwealth was
    ready for trial, the prosecutor responded that it was not.        The
    prosecutor explained that, although the State police trooper had
    sent an electronic mail message to the prosecutor one week
    previously to confirm the date of trial, the trooper had called
    earlier that morning to say that she had had a family emergency
    and was unable to appear.    The prosecutor requested that the
    trial again be rescheduled, asserting, "I understand today is
    the trial date and this has been on for trial several times, but
    there was a family emergency on her end, and I did expect her to
    come today."
    Defense counsel objected to any further continuances.         She
    said, "[T]his is at least three separate occasions when the
    [t]rooper has not been available, and I'd ask you to dismiss the
    matter."    The judge inquired of the prosecutor whether she had
    5
    the same memory of the trooper having been unavailable on
    previous dates, and the prosecutor affirmed that she did.
    The judge then asked the prosecutor whether, on the prior
    dates when the trooper had not appeared, she had received
    advance notice of the trooper's unavailability.    The prosecutor
    responded, "On [August 4, 2020], . . . I knew why [the trooper]
    wasn't here, but I don't believe she gave me [any more] advanced
    notice than like the morning of."    The judge said, "I appreciate
    that she has a family emergency today, and I'm happy that she
    reached out to you[.]    [T]he Commonwealth, however, seems to
    [have] an issue of her not appearing notwithstanding today's
    emergency.    Does the Commonwealth wish to say anything else?"
    The prosecutor answered, "[T]his is a very provable case with
    the [t]rooper.   I do understand that the [t]rooper has not been
    here for multiple dates, and I do understand that, but . . . we
    possibly would take out additional charges if this case was
    dismissed."
    The judge asked defense counsel whether she still intended
    to move for dismissal.    Counsel responded, "I am, Judge.   And
    I'd ask that the Commonwealth be ordered to go through proper
    channels of a [m]otion to [v]acate the [d]ismissal, giving
    notice to myself and my client if they try to reopen it."
    The judge then allowed the motion to dismiss for want of
    prosecution and noted that the dismissal was over the
    6
    Commonwealth's objection.     After dismissing the case, the judge
    added, "Should the Commonwealth wish to pursue this case, the
    Commonwealth is ordered to file a [m]otion to [v]acate the
    [d]ismissal, [and to] notify [the defendant and his attorney] so
    that we can set this up for a hearing where everybody can be
    heard."     The judge also told the defendant, "[S]tay in contact
    with [your attorney].     I anticipate there will likely be a
    motion for you to come back into court, sir; okay?"     A notation
    of dismissal without prejudice was entered on the docket.       The
    Commonwealth then filed a petition for extraordinary relief
    pursuant to G. L. c. 211, § 3, in the county court, and a single
    justice reserved and reported the case, without decision, to the
    full court.
    2.      Discussion.   The Commonwealth argues that the judge
    lacked the authority to require it to file a motion to vacate
    the dismissal before it could seek a new criminal complaint
    against the defendant.     Accordingly, the Commonwealth asserts,
    the judge's ruling effectively was an improper dismissal with
    prejudice.    The defendant maintains that, in allowing the
    prosecutor to file a motion to vacate the dismissal, the judge
    provided the Commonwealth with an adequate opportunity to argue,
    at a hearing, that the prosecutor should be allowed to refile
    the case.    The defendant also argues that the order was
    7
    permissible, given the court's inherent authority to manage its
    docket.
    Article 30 prohibits one branch of the government from
    interfering with the functions of another.    See K.J. v.
    Superintendent of Bridgewater State Hosp., 
    488 Mass. 362
    , 368
    (2021).   Among the functions exclusively within the domain of
    the executive branch is "the decision to proceed with [a]
    prosecution."    Commonwealth v. Newton N., 
    478 Mass. 747
    , 755
    (2018).   Judicial review of such a decision "would constitute an
    intolerable interference by the judiciary in the executive
    department of the government and would be in violation of art.
    30."   
    Id. at 755-756
    .   For this reason, "[i]n the absence of a
    legal basis to do so, it is well established that a judge may
    not dismiss a valid complaint over the Commonwealth's
    objection."   Commonwealth v. Morgan, 
    476 Mass. 768
    , 780 (2017).
    "[W]hen a judge, without any legal basis[,] preempts the
    Commonwealth's presentation of its case[,] that action
    effectively usurps the decision-making authority
    constitutionally allocated to the executive branch" (quotations,
    citation, and alterations omitted).    Commonwealth v. Cheney, 
    440 Mass. 568
    , 574 (2003).
    A prosecutor nonetheless does not have the authority to
    delay prosecution indefinitely once charges have been filed.
    See Commonwealth v. Super, 
    431 Mass. 492
    , 499 (2000); Mass. R.
    8
    Crim. P. 36 (b), as amended, 
    422 Mass. 1503
     (1996) (requiring
    that defendant be brought to trial within specified period of
    time).   "[T]he prosecutor's broad discretion over whether a case
    is prosecuted must be considered in conjunction with the
    judiciary's wide discretion as to when a case goes to trial."
    Commonwealth v. Taylor, 
    428 Mass. 623
    , 629 (1999).    If the
    Commonwealth fails to prosecute a case, a judge has "the
    inherent authority to dismiss [the] indictment for failure to
    prosecute."    Commonwealth v. Graham, 
    480 Mass. 516
    , 536 (2018).
    This authority extends to situations where the Commonwealth is
    not ready for trial because one of its witnesses is absent.     
    Id.
    When a judge dismisses a case for failure to prosecute, the
    dismissal ordinarily is without prejudice, thus allowing the
    prosecutor to refile the charges and to proceed with the
    prosecution.   See Graham, 
    480 Mass. at 537
    .   Because a dismissal
    without prejudice does not preempt further prosecution of a
    defendant, it is "upheld in the absence of an abuse of
    discretion."   
    Id. at 536
    , quoting Commonwealth v. Connelly, 
    418 Mass. 37
    , 38 (1994).
    Alternatively, a judge may dismiss a case with prejudice,
    so that the Commonwealth is precluded from refiling the same
    charges against the defendant.   See Commonwealth v. Mason, 
    453 Mass. 873
    , 877 (2009).    Because dismissal with prejudice
    "precludes a public trial and terminates criminal proceedings"
    9
    (citation omitted), 
    id.,
     such a dismissal raises concerns as to
    whether the court is infringing on the power of the executive
    branch, see Cheney, 
    440 Mass. at 574
    .     For this reason, a
    court's inherent authority to dismiss an indictment with
    prejudice may be exercised only where there is either a "showing
    of irremediable harm to the defendant's opportunity to obtain a
    fair trial" or "prosecutorial misconduct that is egregious,
    deliberate, and intentional, or that results in a violation of
    constitutional rights" (citations omitted).     Bridgeman v.
    District Attorney for the Suffolk Dist., 
    476 Mass. 298
    , 316
    (2017).   "Absent egregious misconduct or at least a serious
    threat of prejudice, the remedy of dismissal infringes too
    severely on the public interest in bringing guilty persons to
    justice" (citation omitted).    Brangan v. Commonwealth, 
    478 Mass. 361
    , 366 (2017).   "To conclude otherwise would be to permit
    judges to substitute their judgment as to whom and what crimes
    to prosecute, for the judgment of those who are constitutionally
    charged with that duty, and who are accountable to the people
    for doing so responsibly."     Cheney, 
    supra at 575
    .
    Here, in response to the Commonwealth's repeated failures
    to prosecute the defendant, the judge dismissed the case without
    prejudice.   As the Commonwealth concedes, the dismissal was not
    an abuse of the judge's discretion.     See Graham, 
    480 Mass. at 536
    , quoting Commonwealth v. Lucero, 
    450 Mass. 1032
    , 1033
    10
    (2008) ("where a prosecutor is unprepared to present her case
    due to the unexpected absence of a witness, a judge has
    discretion to dismiss the case without prejudice").    The judge,
    however, did not limit her order to a simple dismissal.      Rather,
    she added a condition that, in order to pursue new charges
    against the defendant for those offenses, the Commonwealth was
    required to file a motion to vacate the dismissal.    This
    requirement constituted a hurdle for the Commonwealth to
    overcome in order to reprosecute the case.   As a result, the
    Commonwealth could have continued to prosecute the defendant
    only with the court's approval.
    The judge's ruling thus interfered with the prosecutor's
    exclusive "discretion in deciding whether to prosecute a
    particular defendant."   Cheney, 
    440 Mass. at 574
    .    This
    interference took place prior to a "verdict, finding, or plea,"
    
    id. at 568
    , and was not based on a finding that the
    Commonwealth's delays constituted egregious misconduct, or that
    they prejudiced the defendant's ability to receive a fair trial,
    see Mason, 
    453 Mass. at 877
    .   While the ruling was not a
    dismissal with prejudice, it nonetheless improperly constrained
    "a power reserved for the executive branch" (quotations and
    citations omitted).   Commonwealth v. Powell, 
    453 Mass. 320
    , 323
    (2009).   The ruling therefore was in violation of art. 30.
    11
    The defendant argues that the Commonwealth retained the
    right to pursue the prosecution because the judge's action did
    not permanently preempt the Commonwealth from prosecuting the
    case.   Rather, the prosecutor could have moved to vacate the
    dismissal; this, according to the trial judge, would have
    resulted in a "hearing where everybody [could] be heard."        The
    defendant contends that at such a hearing, the prosecutor could
    have argued that a dismissal with prejudice was not warranted;
    if the judge had been persuaded, she then could have placed the
    case back on the trial list.
    This argument is unconvincing.      Nothing in the record
    suggests that, had the prosecutor moved to vacate the dismissal,
    the hearing on the motion to vacate would have addressed whether
    a dismissal with prejudice was warranted.     Rather, the judge
    could have upheld the dismissal without prejudice in the absence
    of a finding of egregious misconduct or prejudice to the
    defendant.     See Commonwealth v. Gardner, 
    467 Mass. 363
    , 368
    (2014) (dismissal without prejudice is upheld absent abuse of
    discretion).    A hearing on a motion to vacate the dismissal thus
    would have been insufficient to protect the "exclusive power of
    the executive branch to prosecute criminal cases."     Commonwealth
    v. Gonsalves, 
    432 Mass. 613
    , 620 (2000).
    The defendant also argues that the judge did not abuse her
    discretion because the ruling was issued pursuant to her
    12
    inherent authority to manage the flow of the court's docket.      In
    the defendant's view, the court has the authority to take the
    measures necessary to maintain the efficiency of its docket in
    the face of the prosecutor's delays.
    The courts' inherent powers are those that, while not
    statutorily provided, see Commonwealth v. Teixeira, 
    475 Mass. 482
    , 490 (2016), are "essential to the performance of their
    functions, to the maintenance of their authority, and to their
    capacity to determine the rights of parties according to law,"
    Commonwealth v. Charles, 
    466 Mass. 63
    , 72-73 (2013), quoting
    Blankenburg v. Commonwealth, 
    260 Mass. 369
    , 373 (1927).    "The
    boundaries of inherent judicial authority have been established
    on a case-by-case basis as challenges to the exercise of a
    particular power have arisen."   Charles, 
    supra at 73
    .    Among the
    courts' inherent powers, we have recognized the authority to
    dismiss an indictment for failure to prosecute, Graham, 
    480 Mass. at 536
    ; to order prehearing discovery, Teixeira, 
    supra at 491
    ; to stay execution of a defendant's sentence in
    exceptional circumstances, Charles, 
    supra at 79
    ; and to make
    scheduling decisions with regard to trial, Super, 
    431 Mass. at 499
    ; we have also recognized the authority "to control and
    supervise personnel within the judicial system" (citation
    omitted), Carrasquillo v. Hampden County Dist. Courts, 
    484 Mass. 367
    , 384 (2020).
    13
    "[T]he very conception of inherent power carries with it
    the implication that its use is for occasions not provided for
    by established methods.   Only when established methods
    fail, . . . or when an emergency arises which the established
    methods cannot or do not instantly meet, then and not till then
    does occasion arise for the exercise of the inherent power"
    (citation and alterations omitted).   Brach v. Chief Justice of
    the Dist. Court Dep't, 
    386 Mass. 528
    , 536 (1982).
    Here, the court had an interest in discouraging further
    delays by the Commonwealth in order to "keep the judicial system
    in efficient operation," State Realty Co. of Boston v. MacNeil
    Bros. Co., 
    358 Mass. 374
    , 379 (1970), and to protect the
    "defendant's ability to receive a fair trial," Connelly, 
    418 Mass. at 39
    .   Established methods, however, would have sufficed
    to serve this interest.   In particular, prior to issuing her
    ruling, the judge could have made a finding on the record
    concerning the existence of either egregious misconduct or
    prejudice to the defendant, which would have enabled appellate
    review of the "propriety of such a finding."   See Commonwealth
    v. Lam Hue To, 
    391 Mass. 301
    , 314 (1984).   If more information
    were needed, the judge could have scheduled a hearing to
    determine whether a dismissal with prejudice was warranted.
    This would have provided the Commonwealth an opportunity to
    prepare an argument that its conduct did not surpass the "high
    14
    threshold that must be crossed before dismissal [with prejudice]
    is appropriate."   Commonwealth v. Viverito, 
    422 Mass. 228
    , 230
    (1996).   We therefore conclude that the judge's ruling was not
    essential for the "judicial department to function" (citation
    omitted).   See Charles, 
    466 Mass. at 73
    .   Rather, the ruling
    constituted an unwarranted intrusion upon the powers granted
    exclusively to the executive branch under art. 30.
    3.    Conclusion.   So much of the order granting the
    defendant's motion to dismiss as required the Commonwealth to
    file a motion to vacate the dismissal is vacated.
    So ordered.