Commonwealth v. Boe , 73 Mass. App. Ct. 647 ( 2009 )

Cypher, J.

We are asked by the commissioner of probation to vacate an order of a Boston Municipal Court judge expunging the defendant’s record, and to limit the defendant’s remedy to the scheme in the sealing statute, G. L. c. 276, § 100C, second par. For reasons which follow, we affirm the judge’s expungement order.

Background. We summarize the relevant facts from the undisputed findings of the Boston Municipal Court judge. Following an automobile accident on July 12, 2006, in the Roslindale section of Boston, the driver of the damaged car (victim) sought information from the driver of the car that struck hers and injured her passenger. That driver said the car was not his; he threatened to return to the scene with a gun, and drove away without giving his name, address, or registration, as required by G. L. c. 90, § 24(2)(a1/2)(l). The victim called the Boston police and reported the accident to an officer. She described the car which struck hers, reported the license number, and described its driver as a short Hispanic male who wore a Red Sox cap and a plaid shirt.

The police traced the license number given by the victim through the registry of motor vehicles, and on July 15, 2006, another police officer mailed a citation to the registered owner, the defendant, Tina Boe. On July 19, 2006, the officer applied for a criminal complaint in the Boston Municipal Court Department.

Responding to notice of a hearing before a clerk-magistrate on September 11, 2006, Boe arrived on time, but mistakenly was directed to an arraignment session by a court employee. After a long wait, she asked another employee about her case, and was told she was in the wrong area. She was then directed to the clerk’s office, where she learned that a criminal complaint had been issued, and was informed that she would receive a summons by mail for the next court date.

On September 26, 2006, Boe was arraigned after an attorney was appointed for her. At a pretrial hearing on November 3, 2006, the Commonwealth and the defendant filed a joint motion requesting that all information in the case be expunged on the ground that Boe mistakenly was identified as the perpetrator of the charged crime. The judge allowed the motion, dismissed the complaint, and ordered expungement of Boe’s record.

On January 18, 2007, the commissioner of probation (commissioner) filed a motion to reconsider and vacate the judge’s expungement order.² The judge denied that motion in a written decision on May 7, 2007, and the commissioner appeals, asserting that the judge lacked authority to issue an order of expungement and that the only remedy available to Boe is sealing of her record pursuant to G. L. c. 276, § 100C.³

Discussion. The commissioner argues that because the complaint filed against Boe was dismissed, the corresponding language of the records sealing statute, G. L. c. 276, § 100C, applies, and that when that statute is applicable, a judge has no authority to order expungement.⁴ We think that argument ignores the particular circumstances of the proceedings against Boe that cause this case to fall outside the ambit of the sealing statute.

The judge found that the complaint was defective because it was based on two fundamental errors. First, the police wrongfully assumed that Boe was the operator of the car, merely because she was the registered owner. No investigation had been conducted to determine who actually operated the car at the time of the accident. The police knew from the victim’s report that the operator said he was not the owner of the car and that the operator was a male. Second, that error was compounded by the error of a court employee in misdirecting Boe, who had no previous experience with court proceedings. Moreover, the judge found that the error also was compounded by the clerk-magistrate in “issuing a complaint against a female [djefendant when the underlying police report clearly identified the wrongdoer in the case as a male.” Boe had no opportunity to demonstrate the error of the police to the clerk-magistrate.

Because Boe mistakenly was charged with a crime committed by a man not identified by the police, no “deliberate act of prosecution against [her]” could be maintained.⁵ Commonwealth v. S.M.F., 40 Mass. App. Ct. 42, 44 (1996). We agree with the judge’s conclusion that the complaint “should never have been issued,” and that it created an “unwarranted entry” of a criminal record for Boe.

Nevertheless, although the commissioner acknowledges that the complaint erroneously identified Boe, he asserts that her case falls within the provisions of G. L. c. 276, § 100C, because cases falling within that statute are deemed to begin by a “deliberate act of prosecution against the named person,” Commonwealth v. S.M.F., supra, and court records accurately reflect that Boe was charged and appeared in court, and that the charge was dismissed.* ⁶ We disagree. It is one thing to initiate a prosecution against a person who has a colorable involvement in a crime, but it is unacceptably Kafkaesque to initiate a prosecution where that person is disconnected from the charged crime. To allow Boe’s name to be carried forward in court records in these circumstances would, as the judge found, constitute a miscarriage of justice, because sealing “does not render the sealed records inaccessible to law enforcement authorities.” Commonwealth v. S.M.F., supra at 45.

“When records are sealed under G. L. c. 276, § 100C, they do not disappear; they continue to exist but become unavailable to the public. . . . Under the sealing procedure, ... the raw data continues to be available to law enforcement officials (police, probation officers, and courts). If the person with a sealed record should subsequently become involved with prosecutorial authority, that individual does not enjoy as clean a slate as one whose record has been expunged.” Commonwealth v. Roberts, 39 Mass. App. Ct. 355, 356 (1995).

“When § 100C or other confidentiality statutes [such as G. L. c. 276, § 100B] are not applicable, the trial courts may invoke their inherent power to order expungement of criminal records. See Police Commr. of Boston v. Municipal Ct. of the Dorchester Dist., 374 Mass. 640, 660-665 (1978).”⁷ Commonwealth v. S.M.F., supra at 44.

The judge recognized that the sealing remedy of § 100C was neither applicable nor adequate, and properly applied the purging recognized by statute.⁸ “If purging is recognized by statute, it cannot be, as the [commissioner] contends, that sealing is the universal and exclusive means of avoiding damage to the reputation of persons whose names have mistakenly found their way into criminal records.” Commonwealth v. S.M.F., supra at 45-46.

No one whose name mistakenly has been introduced into criminal records should be subjected to the future “cloud of prosecution” which will remain if that person’s record is not cleared. Police Commr. of Boston v. Municipal Ct. of the Dorchester Dist., supra at 659, quoting from United States v. Dooley, 364 F. Supp. 75, 78-79 (E.D. Pa. 1973).

The order to expunge Boe’s record from the court, the department of probation, and the criminal history systems board is affirmed.

So ordered.

2 The judge noted that the commissioner’s motion was filed more than sixty days after the entry of the order for expungement, but allowed a waiver of the time restriction where there was no prejudice to Boe, concluding that “[t]he goals of due process and fairness to all parties [would be] advanced.”

3 When a record is expunged, all traces vanish and no indication is left behind that information has been removed. Police Commr. of Boston v. Municipal Ct. of the Dorchester Dist., 374 Mass. 640, 648 (1978). By contrast, records that are sealed do not disappear, as the raw data they contain continues to be available to law enforcement officials. Commonwealth v. Roberts, 39 Mass. App. Ct. 355, 356 (1995).

4 General Laws c. 276, § 100C, second par., as amended through St. 1984, c. 123, states: “In any criminal case wherein a nolle prosequi has been entered, or a dismissal has been entered by the court. . . , and it appears to the court that substantial justice would best be served, the court shall direct the clerk to seal the records of the proceedings in his files. The clerk shall forthwith notify the commissioner of probation and the probation officer of the courts in which the proceedings occurred or were initiated who shall likewise seal the records of the proceedings in their files.”

5 The owner of an automobile is not subject to liability in such circumstances. The statute “making it a criminal offence for the driver of an automobile to go away after knowingly causing injury to a person without stopping and making known his name, residence and the number of his vehicle, relates only to the operator and does not create any liability, criminal or civil, on the part of an owner who is not the operator.” Nager v. Reid, 240 Mass. 211, 214 (1921).

6 Here, the dissent essentially adopts the position of the commissioner who cites the record in Commonwealth v. Gavin G., 437 Mass. 470, 483 n.13 (2002), a juvenile’s case. To the extent that the commissioner seeks to apply any procedure or rulings in that case to the present case, his reliance on Gavin G. is misplaced. The court in that case noted that Juvenile Court proceedings are protected by “a detailed statutory scheme” and that those “precise kinds of statutory protections . . . , having been enacted by the Legislature, make other remedies (including the remedy of expungement) inappropriate.” Id. at 473, 475. The commissioner points to no similarly detailed statutory scheme for adults. In any event, Gavin G. does not alter the long-standing interpretations of G. L. c. 276, § 100C, in cases such as Commonwealth v. Doe, 420 Mass. 142 (1995), and Commonwealth v. Roberts, 39 Mass. App. Ct. 355 (1995).

Because we disagree with the commissioner and the dissent that § 100C is applicable in Boe’s case, it is not necessary to further discuss their reliance on Gavin G. in support of their view that Boe’s only remedy is sealing under that statute.

Furthermore, even if Gavin G. applied, the Supreme Judicial Court recognized that “[sjteps to correct genuine inaccuracies in the probation record . . . and steps to prevent the information in the record from being misleading, are permissible and appropriate.” Commonwealth v. Gavin G., supra at 483 n.13.

7 If G. L. c. 276, § 100C, second par., were applicable in this case, sealing of the record would not be automatic, and Boe would be required to pursue the two-step procedure outlined in Commonwealth v. Doe, supra at 151-153. We think the burden thereby placed on Boe to show that the mistake thrust upon her should be sealed would be fundamentally unfair.

8 General Laws c. 6, § 171, inserted by St. 1972, c. 805, § 1, provides, in relevant part: “The [criminal history systems board] shall promulgate regulations . . . assuring the prompt and complete purging of criminal record information, insofar as such purging is required ... by the order of any court of competent jurisdiction . ...”

It is significant that this statute was not amended by the enactment of G. L. c. 276, § 100C, in 1973, and that it continues to have a parallel existence with § 100C.