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-96
COMMONWEALTH
vs.
H.I.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The petitioner appeals from a District Court judge's order
denying his petition for expungement. See G. L. c. 276, § 100K.
On appeal, the petitioner maintains that expungement was
warranted because he sufficiently demonstrated that the record
in the case "was created as a result of . . . demonstrable
errors by law enforcement," and "demonstrable fraud perpetrated
upon the court." G. L. c. 276, § 100K (a) (3), (6). He also
claims that expungement "is in the best interests of justice."
G. L. c. 276, § 100K (b). We affirm.
Background. The petitioner was charged with assault and
battery on a family or household member after his wife called
the police to their home and arriving responding officers
1 A pseudonym. "hear[d] a female screaming" and, through a window, saw the
petitioner "tightly grasping [his wife's] arm walking her toward
the door." The petitioner's wife told one of the officers that
she and the petitioner had been arguing over the petitioner
placing cameras around their home, and the officer observed a
bruise and scratches on the wife's arm. After he was arrested
and charged, the petitioner filed a notice that he would claim
self-defense. The petitioner also produced video footage that
he maintained revealed his wife as the initial aggressor in the
couple's physical altercations. The videos were from numerous
dates but did not include footage from the night of his arrest.
The petitioner's wife would not consult with counsel
regarding whether she had a privilege against self-incrimination
under the Fifth Amendment to the United States Constitution and
then failed to appear in court. The Commonwealth subsequently
filed a nolle prosequi, citing the interests of justice.
The petitioner filed a petition to expunge the charge (or,
alternatively, to seal the record), alleging errors by law
enforcement or fraud perpetrated upon the court. With his
petition, the petitioner filed (1) an affidavit recounting his
version of events and (2) video clips that -- he
maintained -- supported both his claim that the police failed to
investigate the possibility that his wife was the aggressor, and
2 his claim that his wife had perpetrated a fraud on the court by
calling the police on the night of his arrest.
After a hearing on the petition, at which the Commonwealth
did not appear, the judge denied the petition to expunge and
granted the petition to seal.
Discussion. A judge may order the expungement of a
criminal record if the judge finds, based on clear and
convincing evidence, that the record was created because of
"demonstrable errors by law enforcement" or "demonstrable fraud
perpetrated upon the court." G. L. c. 276, § 100K (a) (3), (6).
"Only after making such findings may a judge consider whether
expungement would be in the best interests of justice"
(quotation and citation omitted). Commonwealth v. K.W., 490
Mass. 619, 625 (2022). We review the judge's order for an abuse
of discretion. See Commissioner of Probation v. Adams, 65 Mass.
App. Ct. 725, 737 (2006). "[A] judge's discretionary decision
constitutes an abuse of discretion where we conclude the judge
made 'a clear error of judgment in weighing' the factors
relevant to the decision, . . . such that the decision falls
outside the range of reasonable alternatives." L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting Picciotto
v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).
The petitioner claims that because the officers knew about
the presence of cameras, they should have sought out and
3 reviewed the footage -- which he posits was potentially
exonerating -- before arresting him, and that not doing so was
demonstrable error. See G. L. c. 276, § 100K (a) (3).
We decline to adopt the petitioner's reasoning. The
officers had probable cause to arrest the petitioner based on
what they saw and heard. Contemporaneous video footage that
showed his wife being physically aggressive -- if, indeed, the
footage showed that -- would not have changed that. See
Commonwealth v. Landry, 438 Mass. 206, 210 (2002) ("[P]robable
cause exists where, at the moment of arrest, the facts and
circumstances within the knowledge of the police are enough to
warrant a prudent person in believing that the individual
arrested has committed or was committing an offense" [citation
omitted]). There was no abuse of discretion in the judge's
determination that neither the petitioner's arrest nor the
creation of the record in this case was caused by law
enforcement error. See Adams, 65 Mass. App. Ct. at 737.
The petitioner further maintains that his wife's calling
the police amounted to fraud perpetrated on the court.
"A 'fraud on the court' occurs where . . . a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense."
4 Adams, 65 Mass. App. Ct. at 729-730, quoting Rockdale Mgmt. Co.
v. Shawmut Bank, N.A., 418 Mass. 596, 598 (1994). We have
distinguished "between a false allegation, on the one hand, and
a deliberate scheme, on the other, typically involving others in
the court system, combined with a larger pattern of harassment,
that has been held to constitute fraud on the court." M.C.D. v.
D.E.D., 90 Mass. App. Ct. 337, 342 (2016).
The petitioner claims that, although his wife only once
involved the police or court system, that call combined with her
alleged history of abuse amounts to a pattern of harassment.
The petitioner further maintains that the hearing judge so
found. We are not persuaded. As noted above, and contrary to
the notion that the wife's abuse allegation was false,
responding officers witnessed the petitioner roughly handling
his wife, and neither the petitioner's affidavit nor the videos,
which we have reviewed, contradict that evidence. The
petitioner maintains that, at the expungement petition hearing,
the judge credited the entirety of the petitioner's written
affidavit as true.2 We do not read the transcript this way.
The petitioner maintains that if we do not read the
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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-96
COMMONWEALTH
vs.
H.I.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The petitioner appeals from a District Court judge's order
denying his petition for expungement. See G. L. c. 276, § 100K.
On appeal, the petitioner maintains that expungement was
warranted because he sufficiently demonstrated that the record
in the case "was created as a result of . . . demonstrable
errors by law enforcement," and "demonstrable fraud perpetrated
upon the court." G. L. c. 276, § 100K (a) (3), (6). He also
claims that expungement "is in the best interests of justice."
G. L. c. 276, § 100K (b). We affirm.
Background. The petitioner was charged with assault and
battery on a family or household member after his wife called
the police to their home and arriving responding officers
1 A pseudonym. "hear[d] a female screaming" and, through a window, saw the
petitioner "tightly grasping [his wife's] arm walking her toward
the door." The petitioner's wife told one of the officers that
she and the petitioner had been arguing over the petitioner
placing cameras around their home, and the officer observed a
bruise and scratches on the wife's arm. After he was arrested
and charged, the petitioner filed a notice that he would claim
self-defense. The petitioner also produced video footage that
he maintained revealed his wife as the initial aggressor in the
couple's physical altercations. The videos were from numerous
dates but did not include footage from the night of his arrest.
The petitioner's wife would not consult with counsel
regarding whether she had a privilege against self-incrimination
under the Fifth Amendment to the United States Constitution and
then failed to appear in court. The Commonwealth subsequently
filed a nolle prosequi, citing the interests of justice.
The petitioner filed a petition to expunge the charge (or,
alternatively, to seal the record), alleging errors by law
enforcement or fraud perpetrated upon the court. With his
petition, the petitioner filed (1) an affidavit recounting his
version of events and (2) video clips that -- he
maintained -- supported both his claim that the police failed to
investigate the possibility that his wife was the aggressor, and
2 his claim that his wife had perpetrated a fraud on the court by
calling the police on the night of his arrest.
After a hearing on the petition, at which the Commonwealth
did not appear, the judge denied the petition to expunge and
granted the petition to seal.
Discussion. A judge may order the expungement of a
criminal record if the judge finds, based on clear and
convincing evidence, that the record was created because of
"demonstrable errors by law enforcement" or "demonstrable fraud
perpetrated upon the court." G. L. c. 276, § 100K (a) (3), (6).
"Only after making such findings may a judge consider whether
expungement would be in the best interests of justice"
(quotation and citation omitted). Commonwealth v. K.W., 490
Mass. 619, 625 (2022). We review the judge's order for an abuse
of discretion. See Commissioner of Probation v. Adams, 65 Mass.
App. Ct. 725, 737 (2006). "[A] judge's discretionary decision
constitutes an abuse of discretion where we conclude the judge
made 'a clear error of judgment in weighing' the factors
relevant to the decision, . . . such that the decision falls
outside the range of reasonable alternatives." L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting Picciotto
v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).
The petitioner claims that because the officers knew about
the presence of cameras, they should have sought out and
3 reviewed the footage -- which he posits was potentially
exonerating -- before arresting him, and that not doing so was
demonstrable error. See G. L. c. 276, § 100K (a) (3).
We decline to adopt the petitioner's reasoning. The
officers had probable cause to arrest the petitioner based on
what they saw and heard. Contemporaneous video footage that
showed his wife being physically aggressive -- if, indeed, the
footage showed that -- would not have changed that. See
Commonwealth v. Landry, 438 Mass. 206, 210 (2002) ("[P]robable
cause exists where, at the moment of arrest, the facts and
circumstances within the knowledge of the police are enough to
warrant a prudent person in believing that the individual
arrested has committed or was committing an offense" [citation
omitted]). There was no abuse of discretion in the judge's
determination that neither the petitioner's arrest nor the
creation of the record in this case was caused by law
enforcement error. See Adams, 65 Mass. App. Ct. at 737.
The petitioner further maintains that his wife's calling
the police amounted to fraud perpetrated on the court.
"A 'fraud on the court' occurs where . . . a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense."
4 Adams, 65 Mass. App. Ct. at 729-730, quoting Rockdale Mgmt. Co.
v. Shawmut Bank, N.A., 418 Mass. 596, 598 (1994). We have
distinguished "between a false allegation, on the one hand, and
a deliberate scheme, on the other, typically involving others in
the court system, combined with a larger pattern of harassment,
that has been held to constitute fraud on the court." M.C.D. v.
D.E.D., 90 Mass. App. Ct. 337, 342 (2016).
The petitioner claims that, although his wife only once
involved the police or court system, that call combined with her
alleged history of abuse amounts to a pattern of harassment.
The petitioner further maintains that the hearing judge so
found. We are not persuaded. As noted above, and contrary to
the notion that the wife's abuse allegation was false,
responding officers witnessed the petitioner roughly handling
his wife, and neither the petitioner's affidavit nor the videos,
which we have reviewed, contradict that evidence. The
petitioner maintains that, at the expungement petition hearing,
the judge credited the entirety of the petitioner's written
affidavit as true.2 We do not read the transcript this way.
The petitioner maintains that if we do not read the
transcript as he asserts, we must remand the matter for written
2 This argument is based on a statement the judge made during the hearing on the petition when, in response to the defense attorney's argument, the judge said, "[e]ven if I accept everything that you're saying, which I do. . . ."
5 findings under K.W., 490 Mass. at 632, which, he claims,
requires written findings in this context. We do not understand
that case to require written findings when a judge denies a
petition to expunge pursuant to G. L. c. 276, § 100K (a), which
does not involve the same level of discretion as a denial
pursuant to § 100K (b). See K.W., supra at 632 (concluding, in
case in which judge denied expungement based on best interests
of justice pursuant to § 100K [b], that judges must enter
written findings on orders denying expungement).
Even if the record showed that the petitioner's wife
intended to make a false allegation, the judge did not abuse his
discretion by not finding that those actions, under these
circumstances, amounted to an "unconscionable scheme calculated
to interfere with the judicial system's ability impartially to
adjudicate a matter" (citation omitted). Adams, 65 Mass. App.
Ct. at 730.
We also have before us the petitioner's motion to "impound
this appeal in its entirety," referred to this panel by the
single justice. The motion is allowed. Counsel is to file,
within two weeks of the issuance of the rescript, a proposed
order as required by Rules 2 (a) and 8 of the Uniform Rules on
Impoundment Procedure, Trial Court Rule VIII (2015), for
consideration by the panel. See S.J.C. Rule 1:15 (b), as
6 appearing in 472 Mass. 1301 (2015) (requests for impoundment in
Appeals Court governed by provisions of Trial Court Rule VIII).
Conclusion. The hearing judge did not abuse his discretion
by denying the petition for expungement pursuant to G. L.
c. 276, § 100K (a). The order is affirmed.
So ordered.
By the Court (Rubin, Singh & Hershfang, JJ.3),
Assistant Clerk
Entered: February 1, 2024.
3 The panelists are listed in order of seniority.