Cruz v. Commonwealth ( 2023 )

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22-P-580 Appeals Court
ROBERTO CRUZ vs. COMMONWEALTH.
No. 22-P-580.
Essex. January 12, 2023. – June 7, 2023.
Present: Meade, Rubin, & Blake, JJ.
Erroneous Conviction. Assault and Battery. Statute,
Construction. Practice, Civil, Summary judgment.
Practice, Criminal, Nolle prosequi.
Civil action commenced in the Superior Court Department on
May 28, 2019.
The case was heard by John T. Lu, J., on a motion for
summary judgment.
Adam Hornstine, Assistant Attorney General, for the
Commonwealth.
Steven J. Rappaport for the plaintiff.
BLAKE, J. The question raised by this appeal is whether
the plaintiff, Roberto Cruz, is eligible to pursue a claim for
compensation under G. L. c. 258D, the erroneous convictions
statute (statute). See G. L. c. 258D, § 1 (B) (ii). Because
the facts adduced at Cruz's criminal trial supported a
conviction of assault and battery, a crime for which Cruz was
2
indicted but that the Commonwealth voluntarily dismissed before
the case went to the jury, we conclude that Cruz is not eligible
for compensation under the statute. Accordingly, we reverse the
order denying the Commonwealth's motion for summary judgment and
remand the case to the Superior Court, where judgment shall
enter for the Commonwealth.1
Background. 1. Prior proceedings. Cruz was indicted on
three counts of indecent assault and battery on a child,
subsequent offense; one count of child enticement; and one count
of assault and battery. A jury convicted Cruz of two counts of
indecent assault and battery on a child and acquitted him on a
third count of indecent assault and battery and on child
enticement.2 The Commonwealth nol prossed the charge of assault
and battery before the case went to the jury. See Commonwealth
v. Cruz, 93 Mass. App. Ct. 136, 136 n.1 (2018) (Cruz I). This
court reversed the judgments, concluding that the evidence was
insufficient to establish that the touchings were indecent. See
1 We disagree with the Commonwealth's contention that it may
appeal any denial of summary judgment in a wrongful conviction
case. That right is limited to cases such as this one that
challenge a plaintiff's eligibility to sue. See Irwin v.
Commonwealth, 465 Mass. 834, 840-842 (2013).
2 After the verdicts, Cruz pleaded guilty to the subsequent
offense portion of the indictments. Commonwealth v. Cruz, 93
Mass. App. Ct. 136, 136 n.1 (2018). He was sentenced to not
more than fifteen years and one day and not less than fifteen
years.
3
id. at 139-140. Cruz then filed a complaint in the Superior
Court seeking compensation under the statute. The Commonwealth
moved for summary judgment, arguing that Cruz failed to satisfy
the jurisdictional prerequisite to bring suit under the statute
because his underlying convictions were not reversed on grounds
tending to establish his innocence of all crimes charged in the
indictments. See G. L. c. 258D, § 1 (B) (ii). A Superior Court
judge denied the Commonwealth's motion, finding that the
Commonwealth's failure to present sufficient evidence of an
essential element of the crime was probative of innocence, and
therefore "it cannot be said that vacating the plaintiff's
conviction was not on grounds which tend to establish
innocence."
2. The underlying criminal case. We recite the salient
facts of the criminal case as set forth in our prior opinion.
The indictments stemmed from a series of events that occurred in
2014 at an aviation company. See Cruz I, 93 Mass. App. Ct. at
137. Jane,3 a thirteen year old girl with Asperger's Syndrome,
was an intern at the aviation company and had met Cruz before at
the airport. Id. Cruz, who was almost sixty years old at the
time, waved Jane over to him and told her that he would like to
give her a hug, but they should do that in a different room.
We refer to the child using the pseudonym used in our
3
prior opinion.
4
Id. Jane then went into a hallway and waited for Cruz for a
couple of minutes before returning to work. Id. Later, Jane
saw Cruz and asked if he still wanted a hug. He hugged her
briefly around the shoulders. Id.
Cruz then asked Jane if she wanted another hug before
leading her into a separate room, with no one else present.
Cruz I, 93 Mass. App. Ct. at 137. This time, he gave her a
second hug, which was tighter, and he kissed her on the neck.
See id. Cruz hugged Jane a third time, lower down on her waist
and hips, and he held her "very tight." Id. Jane was "a little
bit alarmed" by this hug. Finally, Cruz grabbed Jane's shirt at
her right hip and lifted it up slightly before pausing and
putting it back down. See id. He did not expose or touch any
of her skin while lifting the shirt. See id. Cruz also grabbed
Jane's hand. See id.
On direct appeal, Cruz argued that the evidence was
insufficient to support his convictions. We agreed and held
that "the evidence was insufficient to establish that the
defendant's conduct intruded upon a private or intimate area of
the body so as to be considered 'indecent' within the meaning of
the criminal statute." Cruz I, 93 Mass. App. Ct. at 140.
Notwithstanding, we noted that because of the age disparity
between Jane and Cruz and the fact that Cruz led Jane to a
separate room before the alleged indecent touching, the jury
5
could have found that Cruz knew that his actions were
inappropriate. Id. at 139. Furthermore, we observed that "the
defendant's general conduct toward Jane may well have crossed
acceptable norms of appropriate behavior." Id. at 141.
Importantly, we stated that "the defendant's behavior toward
Jane may have constituted the criminal offense of assault and
battery, in the sense of an intentional, but unconsented to,
touching." Id. at 141 n.8.
Discussion. We review the denial of a motion for summary
judgment de novo. See Irwin v. Commonwealth, 465 Mass. 834, 842
n.18 (2013) (applying de novo standard of review); Guzman v.
Commonwealth, 458 Mass. 354, 362 (2010), citing Mass. R. Civ. P.
56 (c), as amended, 436 Mass. 1404 (2002).
1. Statutory framework. The statute was enacted to allow
individuals who were "erroneously convicted but factually
innocent" to have the opportunity to obtain compensation. See
Irwin, 465 Mass. at 847. To do so, "the Commonwealth has
granted a limited waiver of its sovereign immunity under the
erroneous convictions statute to that class of claimants who
establish that they are eligible for relief." Id. at 842. A
claimant must first prove that he is eligible to pursue
compensation and at trial must then "prove, by clear and
convincing evidence, . . . that he did not commit the charged
6
offense." Id. at 839. This case pertains only to the
eligibility aspect of the statute.
Section 1 (B) and (C) (vi) of the statute "perform a
screening function" that limits the class of claimants that is
eligible to bring suit. Guzman, 458 Mass. at 360. A claimant
is eligible to bring a claim if he has "been granted judicial
relief by a state court of competent jurisdiction, on grounds
which tend to establish the innocence of the individual as set
forth in clause (vi) of subsection (C)." G. L. c. 258D,
§ 1 (B) (ii). In turn, § 1 (C) (vi) requires the plaintiff to
show that "he did not commit the crimes or crime charged in the
indictment or complaint or any other felony arising out of or
reasonably connected to the facts supporting the indictment or
complaint, or any lesser included felony" (emphasis added).
G. L. c. 258D, § 1 (C) (vi).
Previous appellate cases that have analyzed the eligibility
requirement of G. L. c. 258D have not addressed the
incorporation of § 1 (C) (vi) into § 1 (B) (ii). See, e.g.,
Renaud v. Commonwealth, 471 Mass. 315, 318 (2015); Irwin, 465
Mass. at 839; Guzman, 458 Mass. at 356. At oral argument, both
parties agreed that there were no appellate cases on the precise
question presented here, and we have found none. Cruz argues
that to meet the eligibility requirement under § 1 (C) (vi), he
need show only that he was granted judicial relief on grounds
7
that tend to establish innocence of the crime for which he was
tried. In contrast, because Cruz was indicted for assault and
battery, the Commonwealth argues that § 1 (C) (vi) makes him
ineligible to sue. This is because reversal of his convictions
was not on grounds tending to establish innocence on that
charge.
We review questions of statutory interpretation de novo.
See Commonwealth v. Perella, 464 Mass. 274, 276 (2013).
"A fundamental principle of statutory interpretation is
that a statute must be interpreted according to the intent
of the Legislature ascertained from all its words construed
by the ordinary and approved usage of the language,
considered in connection with the cause of its enactment,
the mischief or imperfection to be remedied and the main
object to be accomplished . . ." (quotation and citation
omitted).
Mahan v. Boston Retirement Bd., 490 Mass. 604, 613 (2022).
To support his claim, Cruz relies on Renaud, in which the
court stated, "Although [G. L. c. 258D,] § 1 (B) (ii)[,]
references § 1 (C) (vi), the eligibility requirement is separate
and distinct from the merits of the claim of relief that a
claimant must establish at trial, namely that he or she did not
commit the charged offense" (quotation and citation omitted).
Renaud, 471 Mass. at 319. He argues that, as in Renaud, the
Commonwealth conflated the eligibility requirement with the
merits of the claim itself. While we agree that the eligibility
requirement is distinct from the merits of the claim, Cruz's
8
reliance on this isolated sentence is misplaced. In Renaud, the
court responded to the Commonwealth's contention that
eligibility under the statute was limited to those individuals
who are "in fact, innocent." Id. Here, the Commonwealth does
not argue, nor do we conclude, that the incorporation of
§ 1 (C) (vi) into the eligibility requirement means that Cruz
must prove his innocence by clear and convincing evidence to
meet the eligibility requirements of the statute.
"In interpreting the meaning of a statute, we look first to
the plain statutory language." Worcester v. College Hill
Props., LLC, 465 Mass. 134, 138 (2013). Here, the Legislature
inserted G. L. c. 258D, § 1 (C) (vi), into the statute in part
to define "innocence" under § 1 (B) (ii). In addition,
§ 1 (B) (ii) requires proof of "grounds which tend to establish
. . . innocence." To answer the critical question of innocence
of what, the Legislature expressly incorporated by reference the
list of crimes in § 1 (C) (vi). Therefore, Cruz must show that
he was granted judicial relief on grounds that tend to establish
that he is innocent of the crime, of the crimes charged in the
indictments, or of any other felony arising out of the facts
underlying the indictment. See G. L. c. 258D, § 1 (B) (ii);
Santana v. Commonwealth, 90 Mass. App. Ct. 372, 377-378 (2016)
(Trainor, J., concurring).
9
It therefore follows that the reversal of the judgments on
the charges of indecent assault and battery does not end our
analysis, as this fact is only one of three eligibility
considerations. We therefore turn to the question whether Cruz
was granted judicial relief on grounds that tend to establish
that he is innocent of the "crimes . . . charged in the
indictment," here assault and battery. See G. L. c. 258D, § 1
(B) (ii).
2. Grounds tending to establish innocence. "Where the
grounds for relief are not in dispute, the question whether they
'tend to establish' that the plaintiff did not commit the crime
is primarily a question of law." Guzman, 458 Mass. at 365.
There is no bright-line rule that defines what constitutes
grounds of judicial relief that tend to establish innocence.
Indeed, we have rejected a one size fits all approach, see
Santana v. Commonwealth, 90 Mass. App. Ct. at 375, in favor of
"a case-specific, fact-based approach," Santana v. Commonwealth,
88 Mass. App. Ct. 553, 555 (2015). Cruz's reliance on Santana
and Renaud as standing for the proposition that a reversal based
on insufficient evidence constitutes grounds tending to
establish innocence is misplaced. See Renaud, 471 Mass. at 316-
317; Santana, 88 Mass. App. Ct. at 555. In both cases, the
convictions were reversed due to insufficient evidence that the
plaintiff was the individual who had committed the crime. See
10
Renaud, supra (conviction reversed due to insufficient evidence
of identity); Santana, 88 Mass. App. Ct. at 555 (conviction
reversed due to insufficient evidence of possession where
defendant was passenger in vehicle). Notwithstanding, both
cases held that that "insufficient evidence does not
'necessarily equate to actual innocence.'" See Santana, 88
Mass. App. Ct. at 554, quoting Renaud, supra at 319.
In determining Cruz's eligibility, we must examine the four
corners of the underlying judicial decision. See Riley v.
Commonwealth, 82 Mass. App. Ct. 209, 214 (2012) (court required
"to look not only at the legal rationale for judicial relief but
also at the 'facts and circumstances' on which the relief
rests"). Cruz argues that our decision reversing his
convictions "left no theory upon which . . . [he] could be found
guilty of the crime for which he was tried." However, as the
Commonwealth properly claims, because our decision reversing
Cruz's convictions did not constitute grounds tending to
establish his innocence on the assault and battery charge, Cruz
is ineligible to bring an action under the statute. As set
forth in that opinion, we concluded that Cruz's behavior,
although not indecent, may constitute assault and battery as it
was an intentional, unconsented touching. Cruz I, 93 Mass. App.
Ct. at 141 & n.8. And, as the concurrence there noted, "[h]ad
the Commonwealth wanted to, it plainly could have prosecuted the
11
unwanted hug and the slight lifting of the bottom of Jane's
shirt as simple assault and batteries." Id. at 144-145 (Milkey,
J., concurring). This is based on the fact that Cruz hugged
Jane twice, the second of those hugs being "very tight" and with
his hands "lower down, on her waist and hips." Id. at 137.
Cruz also kissed Jane's neck and grabbed her hand while lifting
up her shirt slightly.4 Id. Utilizing a "fact-based approach,"
Santana, 88 Mass. App. Ct. at 555, the underlying conduct does
not tend to establish that Cruz is innocent of assault and
battery. See Santana, 90 Mass. App. Ct. at 376 ("while it is
true that principles of double jeopardy preclude any further
prosecution of the plaintiff on the earlier indictment, . . .
his conviction was not reversed for reasons that tend to
establish his innocence").
4 Cruz contends that the factual issue of consent was never
presented to the jury at his criminal trial. While the
Commonwealth must prove nonconsent for the charge of assault and
battery based on an offensive touching, see Commonwealth v.
Farrell, 31 Mass. App. Ct. 267, 268 (1991), Cruz ignores a
necessary premise of our prior decision. From this, and
particularly with the phrase "unwanted hug," it is reasonable to
conclude that the jury did hear evidence of Jane's nonconsent.
Cf. Commonwealth v. Shore, 65 Mass. App. Ct. 430, 432-433 (2006)
(lack of consent analyzed on totality of circumstances including
disparity in age, experience, sophistication, and authority).
Ultimately though, this does not impact our analysis because the
Commonwealth nol prossed the assault and battery charge before
the case went to the jury.
12
Although we reversed Cruz's convictions of indecent assault
and battery, our decision expressly concluded that under the
facts and circumstances of that case, Cruz could have been
prosecuted on the indictment charging assault and battery. See
Riley, 82 Mass. App. Ct. at 214. That the Commonwealth chose to
file a nolle prosequi on the charge of assault and battery does
not alter our result. There may be a myriad of reasons that the
Commonwealth chose to do so. Indeed, prosecutors have broad
leeway to voluntarily dismiss a charge as a matter of trial
strategy. See Commonwealth v. Pyles, 423 Mass. 717, 719 (1996).
Nothing in the record before us suggests that the voluntary
dismissal was suggestive of actual innocence within the meaning
of G. L. c. 258D, § 1 (B) (ii). Nor is it material to the
eligibility threshold. Put another way, where we set aside
Cruz's convictions but said nothing tending to establish his
innocence of another crime for which he was indicted, assault
and battery, no viable claim under G. L. c. 258D can arise.
Indeed, our underlying decision in the criminal case held only
that Cruz's conduct was not indecent as defined by the case law.
Because his overturned convictions are not probative of his
actual innocence under § 1 (B) (ii), Cruz is not eligible to sue
the Commonwealth under G. L. c. 258D. Cf. Santana, 90 Mass.
App. Ct. at 375-376 (where theory of guilt jury relied upon was
13
unclear, reversal of conviction due to erroneous instruction did
not tend to establish defendant's innocence).
By contrast, our dissenting colleague simply concludes that
we have prejudged the merits, he but fails to address the
precise question before us. The dissent takes an overly broad
view of the statute and seemingly concludes that reversal of the
plaintiff's convictions meets the gatekeeper threshold for
eligibility regardless of the plaintiff's ancillary untried
conduct. The flaw in the dissent is that it ignores the fact
that the statute includes untried crimes set forth in the
indictments and uncharged felonies that can be discerned from
the facts and circumstances of the case for purposes of
eligibility to sue. The dissent's theory fails to honor the
Legislature's comprehensive approach to evaluating eligibility
for relief as well as its overarching purpose of effectuating
only a limited waiver of the Commonwealth's sovereign immunity.5
See Irwin, 465 Mass. at 842.
Conclusion. The order denying the Commonwealth's motion
for summary judgment is reversed. The case is remanded to the
Superior Court where judgment shall enter for the Commonwealth.
So ordered.
5 We take exception to the dissent's description of the
majority as reflecting the "disgust" with which we view the
plaintiff's behavior. See post at . Such a categorization
has no place in the analysis of the claims presented on appeal.
RUBIN, J. (dissenting). Today, the court majority guts the
erroneous convictions statute (statute), G. L. c. 258D, an
important statute that provides a damages remedy to innocent
people who have been exonerated after wrongful conviction and
incarceration. The majority turns the relatively low bar set by
the Legislature for determining which wrongfully incarcerated
plaintiffs can bring a claim under the statute into an
insurmountable wall barring a large segment of those innocent
individuals who have wrongfully been imprisoned from seeking the
redress the Legislature provided. The majority's approach makes
it impossible for those exonerated individuals to sue if either,
as happens in so many cases, including this one, the
Commonwealth has dismissed any of the charges against them, or a
judge can imagine some hypothetical, uncharged crime the
individual's "behavior . . . may constitute," ante at , a
crime that was never charged, perhaps never even thought of, by
law enforcement and prosecutors. The court says that unless the
judicial decision exonerating the wrongfully imprisoned
individual opines about his or her innocence of each such charge
and crime, this exoneree no longer has the remedy the
Legislature crafted both to deter wrongful imprisonment and to
compensate for it. But because courts lack jurisdiction to
opine on charges or crimes not before them, there can never be
such a judicial decision. Thus, in one fell swoop, the court
2
majority eliminates this large class of exonerees from the
protection of the statute, a result the Legislature obviously
did not intend.
The court majority, like the majority and the concurrence
in Commonwealth v. Cruz, 93 Mass. App. Ct. 136 (2018) (Cruz I),
in which we held that the plaintiff in the instant case, Roberto
Cruz, was factually innocent of all the charges of which he was
convicted, emphasizes the disgust with which they view the
plaintiff's behavior. Indeed, the first thing the majority
tells us after initially describing our holding him in Cruz I
innocent of all the charges of which he was convicted, is
"[n]otwithstanding, we noted that because of the age disparity
between Jane and Cruz and the fact that Cruz led Jane to a
separate room before the alleged indecent touching, the jury
could have found that Cruz knew that his actions were
inappropriate. [Id.] at 139. Furthermore, we observed that
'the defendant's general conduct toward Jane may well have
crossed acceptable norms of appropriate behavior.' Id. at 141."
Ante at .
But the court's ruling today applies to all unlawfully
imprisoned individuals who have been exonerated by our courts,
not just those individuals a court may view with distaste.
Unlawfully incarcerated exonerees are the very people for whose
benefit the Legislature enacted the statute, in order to deter
3
wrongful convictions and incarceration, and to compensate those
who have been imprisoned wrongfully.
The decision today thus will do grave damage to the
Commonwealth's attempts to provide justice for exonerated people
who have been imprisoned illegally. Because it ignores both the
plain language of the statute and the precedents of the Supreme
Judicial Court, I respectfully dissent.
Discussion. The plaintiff, Roberto Cruz, was held in jail
for over two and one-half years after being convicted wrongfully
of crimes he did not commit, two counts of indecent assault and
battery on a child under fourteen. See G. L. c. 265, § 13B.
That he was factually innocent was the flat, explicit,
unequivocal, and final holding of this court in Cruz I, 93 Mass.
App. Ct. 136.
"In 2004, in the wake of a growing number of exonerations
both in Massachusetts and across the nation, the Legislature
enacted c. 258D, which created a remedy, in the form of a new
cause of action (and a corresponding waiver of sovereign
immunity) that could be brought against the Commonwealth by
persons who had been wrongfully convicted and imprisoned. . . .
The statute provides a variety of remedies for a person so
harmed, including the recovery of up to $500,000 in damages from
the Commonwealth. G. L. c. 258D, § 5." Guzman v. Commonwealth,
458 Mass. 354, 355-356 (2010) (Cordy, J.).
4
Cruz filed an action under the statute, which, as
described, provides a damages remedy to those who have been
wrongfully convicted and incarcerated if they can "establish, by
clear and convincing evidence" that they "did not commit the
crimes or crime charged in the indictment or complaint or any
other felony arising out of or reasonably connected to the facts
supporting the indictment or complaint, or any lesser included
felony." G. L. c. 258D, § 1 (C) (vi). Cruz -- again,
wrongfully convicted and incarcerated for over two and one-half
years -- is entitled to his day in court in order to prove his
claim that he is factually innocent.
The Commonwealth, however, apparently unable to accept the
Legislature's action in creating this remedy, argues, not for
the first time, that the threshold question of eligibility even
to bring suit under G. L. c. 258D, § 1 (B) (ii) (eligibility
provision) -- a provision that merely limits the class of
potential litigants to "those who have been granted judicial
relief by a state court of competent jurisdiction, on grounds
which tend to establish the innocence of the individual"
(emphasis added) -- actually requires the court to look at the
entire case in advance of trial and determine the merits,
without any full record of what happened. It argues that the
plaintiff must show that the decision reversing or vacating the
plaintiff's conviction means he would win on the merits of his
5
claim under the statute and could prove actual innocence not
only of all the crimes for which he was tried, but of any
charged-but-dismissed crime or uncharged felony that might have
arisen out of the facts supporting the complaint, even though
neither the court vindicating the plaintiff, nor any other, has
ever even had authority to opine on the matter.
The Supreme Judicial Court, however, has rejected this
argument, explicitly, in Guzman:
"While we agree that the eligibility requirements of
c. 258D were intended to limit the class of persons
entitled to pursue relief, and in this sense perform a
screening function, and that the relief granted must be on
grounds tending to do more than merely assist the
defendant's chances of acquittal, we do not discern a
legislative intent that the determination of eligibility be
tantamount to a testing of the merits of a claimant's case.
If the Legislature intended it to be so, it could have
structured the statute to specifically reflect this
intent."
Guzman, 458 Mass. at 360-361. "[T]he language of the statute
did not 'import[] into the eligibility provision a preliminary
assessment' of the ultimate merits of the claim" (citation
omitted). Id. at 365. Indeed, in Guzman the Supreme Judicial
Court held that the eligibility hurdle was met in a case weaker
than this, where the judicial basis for reversing the
plaintiff's conviction did not even address actual innocence,
but only the failure to call witnesses who might have rebutted a
detective's identification testimony. Id.6
In the case before us, this court has already held that the
plaintiff was factually innocent of the only two charges to go
to the jury of which he was convicted. Obviously, this "tends
to establish" that Cruz "did not commit the crimes or crime
charged in the indictment or complaint or any other felony
arising out of or reasonably connected to facts supporting the
indictment or complaint, or any lesser included felony." G. L.
c. 258D, § 1 (B) (ii), (C) (vi). See Guzman, 458 Mass. at 362("'tend[s] to establish' . . . is properly understood to mean
judicial relief on 'grounds resting upon facts and circumstances
probative of the proposition that the claimant did not commit
the crime'" [citations omitted]). Our prior decision may not
establish innocence of all felonies that might be found to arise
out of the facts supporting the indictments. Indeed, because
the court lacked jurisdiction to opine on that question, the
decision could not establish that. But in concluding that the
plaintiff did not commit those crimes charged in the indictments
that the Commonwealth sent to the jury, and of which he was
convicted, our prior decision certainly "tends" to establish it.
That should be the end of the case.
Unfortunately, the court majority accepts the
Commonwealth's invitation. The majority drains of most meaning
the "tend to establish" language in the statute -- the meaning
of which is in fact the "precise question before us," ante at
7
. Indeed, it says, clearly mistakenly, Cruz's "overturned
convictions are not probative of his actual innocence." Ante
at .
And the court majority goes further. Examining the
relationship of our decision in Cruz I with another charged
offense (assault and battery) of which Cruz was not convicted --
indeed, that was not even thought by the Commonwealth worthy of
submission to the jury and that was so weak it was nol prossed
by the Commonwealth after the evidence was presented to the jury
-- the majority concludes that "because our decision reversing
Cruz's convictions did not constitute grounds tending to
establish his innocence on the assault and battery charge, he is
ineligible to bring an action under the statute." Ante at .6
This is precisely the preliminary assessment of the merits that
the Supreme Judicial Court has held is inappropriate.
Of course our decision in Cruz I did not tend to establish
the plaintiff's innocence of the assault and battery charge. He
6Nolle prosequi is a Latin phrase that means "not to wish
to prosecute." In this Commonwealth, a nolle prosequi, the verb
form of which is "nol pros," Del Gallo v. District Attorney for
the Suffolk Dist., 488 Mass. 1008, 1008 (2021), and of which the
past tense of the verb form is "nol prossed," Pina v.
Commonwealth, 491 Mass. 1020, 1020 (2023), is entered by the
prosecutor in order to terminate the prosecution of one or more
charges. "After jeopardy attaches, a nolle prosequi entered
without the consent of the defendant shall have the effect of an
acquittal of the charges contained in the nolle prosequi."
Mass. R. Crim P. 16 (b), 378 Mass. 885 (1979).
8
was not convicted of it, so we properly did not address it.
Indeed, the Commonwealth, despite presenting evidence on it
decided not to send it to the jury. The Commonwealth, rather,
asked the judge to enter an order that is in essence an
acquittal of the charge, see Mass. R. Crim P. 16 (b), 378 Mass.
885 (1979), and which, under principles of double jeopardy,
prohibits the plaintiff from now being tried on the charge.
The reasons for the nolle prosequi do not matter, but the
majority's statement that voluntary dismissal by the
Commonwealth is not even "suggestive of actual innocence" does
not withstand scrutiny. Ante at . Unlikelihood of conviction
is an obvious reason a prosecutor would nol pros a
nonduplicative charge after having put on all the Commonwealth's
evidence with respect to the charge. In any event, for the
reasons previously indicated, our decision in Cruz I does
"tend[] to establish" Cruz's factual innocence of any crimes
that may have arisen out of the facts supporting the indictments
-– by establishing his innocence of all the charges the
Commonwealth saw fit to send to the jury and of which he was
convicted (all wrongfully).
The approach taken instead by the court majority
unfortunately amounts to the examination of the ultimate merits,
and usurpation of the jury function, that the Supreme Judicial
Court has repeatedly warned us the eligibility provision does
9
not allow. And it leaves a hollowed-out statute, which is not
what either the Legislature, or the Supreme Judicial Court in
construing the statute, intended.
Our job is not to scan the record of the criminal trial --
incomplete in any event with respect to dismissed or uncharged
crimes -- to determine whether we can come up with some charged
crime or uncharged felony never even sent to the jury arising
out of the facts underlying reversed convictions, crimes by
definition not involved in the judicial decision finding all
actual convictions unsupported by sufficient evidence. We are
supposed to be asking only the threshold eligibility question:
Does Cruz I, finding the plaintiff factually innocent of the
actual charges on which he was convicted, "tend to establish"
his factual innocence? It obviously does.
Nor, obviously, does the dictum in the footnote in Cruz I
saying Cruz's behavior "may" have amounted to assault and
battery amount to an expression of an opinion on the merits of
the assault and battery charge that was not before us. That
dictum says only:
"While the defendant's behavior toward Jane may have
constituted the criminal offense of assault and battery, in
the sense of an intentional, but unconsented to, touching,
simple assault and battery is not a lesser included offense
of indecent assault and battery on a child, because lack of
consent is not an element of the latter charge."
10
Cruz I, 93 Mass. App. Ct. at 141 n.8. This states only that
even if the conduct amounted to assault and battery, that is not
a lesser included offense of the unsupported offense of
conviction.
Nonetheless, in reaching its decision, the majority now
holds, based on a concurrence representing the view of one lone
justice of this court, that, on the merits, Cruz was guilty of
assault and battery: "[A]s the concurrence there noted, '[h]ad
the Commonwealth wanted to, it plainly could have prosecuted the
unwanted hug and the slight lifting of the bottom of Jane's
shirt as simple assault and batteries.'" Ante at , quoting
Cruz I, 93 Mass. App. Ct. at 144-145 (Milkey, J., concurring).
Indeed, the majority somehow transmogrifies that conclusion of
one justice, writing only for himself, which has no precedential
weight, and which is not even the majority's dictum, into a
conclusion that "our decision expressly concluded that under the
facts and circumstances of that case, Cruz could have been
prosecuted on the indictment charging assault and battery," ante
at , which the decision in Cruz I clearly did not.
We are not supposed to be asking whether we think Cruz
committed a crime that was not sent to the jury and on which, in
our earlier case, we did not (and could not properly) opine, in
this case assault and battery. The jury in his criminal trial
did not decide the question because the Commonwealth concluded
11
the claim was not worthy of presentation to it and nol prossed
the charge before it went to the jury. In this action, a second
jury, and not appellate judges who have heard no evidence, are,
in light of Cruz I, supposed to determine whether the plaintiff
can establish his factual innocence not only of the crimes of
which he was convicted, which has already been decided, but of
that charge, as well as any other charge that might have arisen
out of the conduct underlying his indictments, by clear and
convincing evidence.
Cruz may lose if he is allowed to attempt that. I have no
idea and neither do my colleagues. But the court today deprives
him of the opportunity to do so, and the jury of the opportunity
to decide.
Conclusion. Because this denies Cruz his day in court in
violation of the statute and the decisions of the Supreme
Judicial Court that protect those, like him, who are wrongfully
convicted and incarcerated, and because this construction of the
eligibility clause will improperly narrow for the future the
avenue of relief the Legislature has decided to provide for the
wrongfully convicted and incarcerated, I respectfully dissent.