Commonwealth v. Christopher Kennelly. ( 2024 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1377
COMMONWEALTH
vs.
CHRISTOPHER KENNELLY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was charged with assault and battery on his
brother. At a second trial date, the victim did not appear, and
the case was dismissed without prejudice. On appeal, the
defendant claims the matter should have been dismissed with
prejudice. We affirm.
A dismissal with prejudice "precludes a public trial and
terminates criminal proceedings," which raises separation of
powers concerns (citation omitted). Commonwealth v. Rosa, 491
Mass. 369, 373 (2023). Because of this, a judge has the
authority to dismiss a complaint with prejudice 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.'" Id., quoting
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).
Here, there was no showing of prosecutorial misconduct, let
alone egregious misconduct, which would justify a dismissal with
prejudice. Instead, the defendant claims there was insufficient
evidence to prosecute the case. However, that claim must be
brought in a motion to dismiss. See Commonwealth v.
DiBennadetto, 436 Mass. 310, 313 (2002). The judge did not
abuse her discretion by dismissing the complaint without
prejudice.
Judgment affirmed.
By the Court (Meade,
Hershfang & Toone, JJ.1),
Clerk
Entered: October 28, 2024.
1 The panelists are listed in order of seniority.
2