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
25-P-211
COMMONWEALTH
vs.
JOSE GONZALEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On October 4, 2023, the defendant was charged by complaint
in District Court with assault by means of a dangerous weapon,
in violation of G. L. c. 265, § 15B (b). On March 22, 2024,
defense counsel filed an assented-to motion to dismiss based on
the assistant district attorney's erroneous belief that the
victim did not want to testify. That motion was allowed the
same day. Less than one month later, a different assistant
district attorney sought a second complaint,1 which charged the
defendant with the same crime. On July 29, 2024, the defendant
filed a second motion to dismiss. On November 1, 2024, after a
non-evidentiary hearing, a District Court judge (motion judge)
1 The first assistant district attorney had retired. dismissed the complaint with prejudice. The Commonwealth
appeals that dismissal, and we reverse.
"Article 30 prohibits one branch of the government from
interfering with the functions of another." Commonwealth v.
Rosa, 491 Mass. 369, 372 (2023), citing K.J. v. Superintendent
of Bridgewater State Hosp., 488 Mass. 362, 368 (2021). "[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." Rosa, supra, quoting Commonwealth v. Cheney,
440 Mass. 568, 574 (2003). See art. 30 of the Declaration of
Rights of the Massachusetts Constitution ("the judicial
[department] shall never exercise the legislative and executive
powers"); Commonwealth v. Gordon, 410 Mass. 498, 501 (1991)
(judge may not usurp decision-making authority constitutionally
allocated to executive branch).
When a judge dismisses a complaint with prejudice, the
Commonwealth is precluded from instituting the same charges
against the defendant. Rosa, 491 Mass. at 373. Dismissing a
complaint in this manner "raises concerns as to whether the
court is infringing on the power of the executive branch." Id.
See Cheney, 440 Mass. at 574. Accordingly, "a court's inherent
authority to dismiss [a complaint] with prejudice may be
2 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.'" Rosa, supra, quoting Bridgeman v. District Attorney
for the Suffolk Dist., 476 Mass. 298, 316 (2017). "[D]ismissal
with prejudice 'is a remedy of last resort.'" Bridgeman, 476
Mass. at 316, quoting Commonwealth v. Cronk, 396 Mass. 194, 198
(1985). See Commonwealth v. Mason, 453 Mass. 873, 877 (2009)
(dismissal "precludes a public trial" [citation omitted]).
Here, the motion judge found that there was no egregious
prosecutorial misconduct in the delayed disclosure to defense
counsel of the video recording depicting the crime, which had
been provided by the victim to the police.2 The motion judge
found that the first assistant district attorney misunderstood
2 The video recording was not made an exhibit at the motion to dismiss hearing. Despite this, the motion judge made findings of fact based on defense counsel's description of its contents in her affidavit, and the judge's assertion was that the prosecutor did not challenge that description. Putting aside that the prosecutor present at the time was filling in for his colleague assigned to the case, and that the record does not reflect that the substitute prosecutor had ever seen the video recording, ascertaining the actual contents of the video recording is not necessary to our resolution of the matter before us. With that said, the better practice would have been to make the video recording an exhibit, and for the judge to view it before making findings as to its content.
3 the victim's desire to participate. He further found that the
successor prosecutor promptly sought a new complaint on the same
allegations after learning of the misunderstanding and promptly
produced the key discovery, albeit months after her predecessor
should have produced it. Noting the unusual circumstances of
this case, the motion judge added that the second prosecutor
could have availed herself of other means to bring the case back
aside from seeking a second complaint,3 but her choice not to was
neither intentional nor egregious misconduct, and not a
sufficient basis to dismiss the case with prejudice. These
findings are all supported by the record, and the defendant does
not argue otherwise.
The motion judge did, however, find that the defendant has
been prejudiced as to his ability to defend himself at trial,
specifically holding that he has been "substantially harmed and
there is no adequate remedy other than dismissal with
prejudice." In particular, the motion judge noted that the
eight-month delay in providing the victim's video recording to
the defense was not itself per se prejudicial. Instead, he
concluded that the delay prevented the defendant from
discovering the precise time and location of the incident in
3 See footnote 6 infra.
4 October or November of 2023, as well as denying him the
opportunity to preserve surveillance footage held by a nearby
business before it was lost.4 We disagree.5
As an initial matter, we note that the lost surveillance
video footage was never in the possession, custody, or control
of the police or the district attorney's office. In that
posture, the Commonwealth did not have a duty to preserve it.
See Commonwealth v. Sasville, 35 Mass. App. Ct. 15, 19-21
(1993). In the absence of willful misconduct on the part of the
4 The judge also concluded that the delay "impeded the defendant from timely identifying and locating a third-party percipient witness" on the video recording and that the delay in identification of that witness was further compounded by "the transient nature of many of Holyoke's housing-insecure residents." For the same reasons discussed infra, we disagree.
5 We reject the defendant's contention that the Commonwealth is precluded from claiming a lack of prejudice where it has not made precisely the same claims at the hearing as it does now on appeal. First, had the prosecutor conceded that the defendant was prejudiced, we would agree that the Commonwealth would be barred from arguing otherwise on appeal. See Commonwealth v. Accaputo, 380 Mass. 435, 444 n.11 (1980).
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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
25-P-211
COMMONWEALTH
vs.
JOSE GONZALEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On October 4, 2023, the defendant was charged by complaint
in District Court with assault by means of a dangerous weapon,
in violation of G. L. c. 265, § 15B (b). On March 22, 2024,
defense counsel filed an assented-to motion to dismiss based on
the assistant district attorney's erroneous belief that the
victim did not want to testify. That motion was allowed the
same day. Less than one month later, a different assistant
district attorney sought a second complaint,1 which charged the
defendant with the same crime. On July 29, 2024, the defendant
filed a second motion to dismiss. On November 1, 2024, after a
non-evidentiary hearing, a District Court judge (motion judge)
1 The first assistant district attorney had retired. dismissed the complaint with prejudice. The Commonwealth
appeals that dismissal, and we reverse.
"Article 30 prohibits one branch of the government from
interfering with the functions of another." Commonwealth v.
Rosa, 491 Mass. 369, 372 (2023), citing K.J. v. Superintendent
of Bridgewater State Hosp., 488 Mass. 362, 368 (2021). "[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." Rosa, supra, quoting Commonwealth v. Cheney,
440 Mass. 568, 574 (2003). See art. 30 of the Declaration of
Rights of the Massachusetts Constitution ("the judicial
[department] shall never exercise the legislative and executive
powers"); Commonwealth v. Gordon, 410 Mass. 498, 501 (1991)
(judge may not usurp decision-making authority constitutionally
allocated to executive branch).
When a judge dismisses a complaint with prejudice, the
Commonwealth is precluded from instituting the same charges
against the defendant. Rosa, 491 Mass. at 373. Dismissing a
complaint in this manner "raises concerns as to whether the
court is infringing on the power of the executive branch." Id.
See Cheney, 440 Mass. at 574. Accordingly, "a court's inherent
authority to dismiss [a complaint] with prejudice may be
2 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.'" Rosa, supra, quoting Bridgeman v. District Attorney
for the Suffolk Dist., 476 Mass. 298, 316 (2017). "[D]ismissal
with prejudice 'is a remedy of last resort.'" Bridgeman, 476
Mass. at 316, quoting Commonwealth v. Cronk, 396 Mass. 194, 198
(1985). See Commonwealth v. Mason, 453 Mass. 873, 877 (2009)
(dismissal "precludes a public trial" [citation omitted]).
Here, the motion judge found that there was no egregious
prosecutorial misconduct in the delayed disclosure to defense
counsel of the video recording depicting the crime, which had
been provided by the victim to the police.2 The motion judge
found that the first assistant district attorney misunderstood
2 The video recording was not made an exhibit at the motion to dismiss hearing. Despite this, the motion judge made findings of fact based on defense counsel's description of its contents in her affidavit, and the judge's assertion was that the prosecutor did not challenge that description. Putting aside that the prosecutor present at the time was filling in for his colleague assigned to the case, and that the record does not reflect that the substitute prosecutor had ever seen the video recording, ascertaining the actual contents of the video recording is not necessary to our resolution of the matter before us. With that said, the better practice would have been to make the video recording an exhibit, and for the judge to view it before making findings as to its content.
3 the victim's desire to participate. He further found that the
successor prosecutor promptly sought a new complaint on the same
allegations after learning of the misunderstanding and promptly
produced the key discovery, albeit months after her predecessor
should have produced it. Noting the unusual circumstances of
this case, the motion judge added that the second prosecutor
could have availed herself of other means to bring the case back
aside from seeking a second complaint,3 but her choice not to was
neither intentional nor egregious misconduct, and not a
sufficient basis to dismiss the case with prejudice. These
findings are all supported by the record, and the defendant does
not argue otherwise.
The motion judge did, however, find that the defendant has
been prejudiced as to his ability to defend himself at trial,
specifically holding that he has been "substantially harmed and
there is no adequate remedy other than dismissal with
prejudice." In particular, the motion judge noted that the
eight-month delay in providing the victim's video recording to
the defense was not itself per se prejudicial. Instead, he
concluded that the delay prevented the defendant from
discovering the precise time and location of the incident in
3 See footnote 6 infra.
4 October or November of 2023, as well as denying him the
opportunity to preserve surveillance footage held by a nearby
business before it was lost.4 We disagree.5
As an initial matter, we note that the lost surveillance
video footage was never in the possession, custody, or control
of the police or the district attorney's office. In that
posture, the Commonwealth did not have a duty to preserve it.
See Commonwealth v. Sasville, 35 Mass. App. Ct. 15, 19-21
(1993). In the absence of willful misconduct on the part of the
4 The judge also concluded that the delay "impeded the defendant from timely identifying and locating a third-party percipient witness" on the video recording and that the delay in identification of that witness was further compounded by "the transient nature of many of Holyoke's housing-insecure residents." For the same reasons discussed infra, we disagree.
5 We reject the defendant's contention that the Commonwealth is precluded from claiming a lack of prejudice where it has not made precisely the same claims at the hearing as it does now on appeal. First, had the prosecutor conceded that the defendant was prejudiced, we would agree that the Commonwealth would be barred from arguing otherwise on appeal. See Commonwealth v. Accaputo, 380 Mass. 435, 444 n.11 (1980). However, at the motion to dismiss hearing, the prosecutor expressly, albeit without the same detail found on appeal, argued the defendant had suffered no prejudice. Second, the defendant's reliance on Commonwealth v. Bettencourt, 447 Mass. 631, 633 (2006), is misplaced. In that case, unlike here, the Commonwealth attempted to justify the actions of the police based on a theory that was raised for the first time on appeal, which the court prohibited. Finally, because the motion judge's allowance of the motion to dismiss was premised on a finding of prejudice, the Commonwealth is free to challenge that determination on appeal. See Commonwealth v. Page, 105 Mass. App. Ct. 532, 537 (2025).
5 authorities, as the judge found here, the defendant "has the
initial burden . . . to establish a reasonable possibility,
based on concrete evidence rather than a fertile imagination,
that access to the [evidence] would have produced evidence
favorable to his cause" (quotations and citation omitted).
Commonwealth v. Cintron, 438 Mass. 779, 784 (2003). See
Commonwealth v. Lam Hue To, 391 Mass. 301, 314 (1984). If the
defendant meets his initial burden, the court "must proceed to
balance the Commonwealth's culpability, the materiality of the
evidence, and the prejudice to the defendant in order to
determine whether the defendant is entitled to relief."
Commonwealth v. Williams, 455 Mass. 706, 718 (2010).
Here, the defendant's speculative claim that the lost
evidence would have been exculpatory is insufficient. It is not
the equivalent of "concrete evidence." Commonwealth v. Meas,
467 Mass. 434, 448 (2014). As the motion judge noted, "it is
possible" that neither the lost surveillance "footage nor the
unidentified third-party witness would have yielded fruit in
terms of providing exculpatory evidence to the defense." But
more importantly, we do not accept the motion judge's conclusion
that the delay in this case prevented the defense from
canvassing the area near the location of the assault to make a
timelier discovery of potential surveillance footage or
6 witnesses. As the Commonwealth notes, the police report of the
incident provided the address to where the police responded on
October 2, 2023, and also recited the victim's report as to
where the incident occurred. The defendant had counsel on the
day that the complaint issued, October 4, 2023, and a motion for
funds for an investigator was allowed on October 19, 2023. The
defendant did not need the surveillance footage to embark on a
timely investigation of the matter.
The motion judge also held that the key source of prejudice
resulted from the delay in holding a hearing pursuant to
Commonwealth v. Dougan, 377 Mass. 303, 316-317 (1979), to
explore the circumstances of the victim's out-of-court
identification of the defendant. As the motion judge properly
found, the delay in holding the Dougan hearing was occasioned by
the assented-to dismissal of the first complaint. As he also
held, however, this dismissal was not the product of
prosecutorial misconduct, but rather because of a simple
misunderstanding. When the Dougan hearing was held, after the
issuance of the second complaint, the victim provided the
details and circumstances under which he identified the
defendant, and how the victim was familiar with the defendant
prior to the incident. The hearing also revealed that the
7 police did not direct or make suggestive the victim's
identification.
The cases relied on by the motion judge and the defendant
do not properly support the dismissal of the complaint with
prejudice. In Commonwealth v. Gomes, 470 Mass. 352, 357 n.11
(2015), the court addressed how memories can fade over time, and
in Commonwealth v. Crayton, 470 Mass. 228, 239-240 (2014), the
court noted that a witness's level of confidence in an
identification is not a reliable predictor of the accuracy of
the identification, and the dangers of a first-time in-court
Neither of these cases inform the circumstances of this
case. First, if the victim here identifies the defendant in
court at trial, it will not be a first-time identification to be
treated as an in-court showup. See Crayton, 470 Mass. at 238-
244. Second, although it is true that memories often fade over
time, here the victim provided more details at the Dougan
hearing relative to his identification than he had previously
provided to the police. This could be explained by any number
of reasons that could properly be explored at trial. In any
event, degradation or alteration of the victim's memory was not
enough to support dismissal of the charges with prejudice. The
Legislature has addressed that concern by setting forth a six-
8 year statute of limitations for the crime with which the
defendant was charged, see G. L. c. 277, § 63, and a judge may
not shorten that period by dismissing a case with prejudice.
See Commonwealth v. McLaughlin, 431 Mass. 241, 250 (2000)
("[t]he appropriate statute of limitations is a matter for the
Legislature"). The defendant has failed to establish his
initial burden, and the motion judge's order dismissing the
complaint with prejudice "constituted an unwarranted intrusion
upon the powers granted exclusively to the executive branch
under art. 30." Rosa, 491 Mass. at 376.6
Order allowing motion to dismiss reversed. A new order shall enter denying the motion.
By the Court (Meade, Ditkoff & Toone, JJ.7),
Clerk
Entered: December 10, 2025.
6 Finally, the parties differ over the propriety of the motion judge's determination that it was error to issue the second complaint without notice to the defendant and an opportunity to be heard. However, the motion judge expressly declined to make this a supporting basis of his decision to dismiss the complaint with prejudice. In that posture, any resolution of the issue would be dicta, and we decline to address the matter. See Crocker v. Justices of the Superior Court, 208 Mass. 162, 173 (1911).
7 The panelists are listed in order of seniority.