Commonwealth v. Rosa

• Court: Massachusetts Supreme Judicial Court
• Decided: February 24, 2023
• Docket: SJC 13277
• Status: Published

Opinion

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us

SJC-13277

COMMONWEALTH vs. ROBERTO ROSA & another.1

Suffolk. October 7, 2022. - February 24, 2023.

Present (Sitting at Plymouth): Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

Practice, Criminal, Complaint, Dismissal, Delay in commencement of prosecution, Interlocutory appeal, District attorney, Judicial discretion. Constitutional Law, Separation of powers.

Civil action commenced in the Supreme Judicial Court for the county of Suffolk on November 22, 2021.

The case was reported by Wendlandt, J.

Darcy Jordan, Assistant District Attorney, for the Commonwealth. Esther J. Horwich for Roberta Rosa.

GAZIANO, J. The defendant's trial for operating a motor

vehicle while under the influence of alcohol and other related

charges was continued three times because the prosecutor was not

1 Dorchester Division of the Boston Municipal Court Department. 2

ready for trial.2 Two of these continuances were due to the

unavailability of the Commonwealth's key witness, the State

police trooper who had arrested the defendant. When the witness

was unavailable for a third time, the defendant moved to dismiss

for lack of prosecution and requested that the Commonwealth be

required to file a motion to vacate the dismissal if it chose to

refile the case. The judge granted the defendant's motion and

dismissed the case without prejudice. The order of dismissal

also required the Commonwealth to file a motion to vacate if it

decided to proceed with the prosecution of the case. The

Commonwealth then sought extraordinary relief in the county

court, pursuant to G. L. c. 211, § 3, on the ground that the

judge's order violated the district attorney's constitutional

authority to choose which cases to prosecute. A single justice

reserved and reported the case to the full court.

We conclude that the judge's decision to require the

Commonwealth to seek court approval before refiling charges was

an abuse of discretion. Article 30 of the Massachusetts

Declaration of Rights protects a prosecutor's right to decide

whether to prosecute a defendant and for which offenses; a court

may not impede the exercise of that right by imposing an

2 Although the Commonwealth commenced this action by filing a petition in the county court, for convenience we refer to the respondent as the "defendant." 3

additional requirement on the prosecution before it can refile

the charges.

1. Background. On January 2, 2020, a complaint issued in

the Boston Municipal Court charging the defendant with operating

a motor vehicle while under the influence of alcohol, G. L.

c. 90, § 24 (1) (a) (1); negligent operation of a motor vehicle,

G. L. c. 90, § 24 (2) (a); possession of an open container of

alcohol in a motor vehicle, G. L. c. 90, § 24I; and a marked

lanes violation, G. L. c. 89, § 4A. A jury trial was scheduled

for February 27, 2020.

On what would have been the first day of trial, the

Commonwealth's request for a continuance was allowed because its

key witness, the State police trooper who had stopped and

arrested the defendant, was unavailable, as she had been

summonsed to appear in a different court. The case then was

rescheduled two more times due to the state of emergency arising

from the COVID-19 pandemic. Thereafter, on August 4, 2020,

trial again was continued because the Commonwealth was not ready

for trial, and the defendant's motion to dismiss was denied. A

jury-waived trial was scheduled for September 4, 2020. On that

date, the Commonwealth answered not ready for trial because the

State police trooper was on vacation. Again, the defendant's

motion to dismiss was denied. A jury-waived trial was

rescheduled for November 9, 2020, and, on the scheduled day, 4

trial again was continued. A jury trial subsequently was

scheduled for March 8, 2021, but was rescheduled because there

were no jurors. For reasons not indicated in the record, on

May 13, 2021, the jury trial was continued to July 7, 2021, and,

on that date, trial again was continued, this time to

October 12, 2021. By that point, four Boston Municipal Court

judges had allowed continuances of the trial.

On the morning of October 12, 2021, the Boston Municipal

Court judge who had allowed the continuance on November 9, 2020,

presided. When the judge asked whether the Commonwealth was

ready for trial, the prosecutor responded that it was not. The

prosecutor explained that, although the State police trooper had

sent an electronic mail message to the prosecutor one week

previously to confirm the date of trial, the trooper had called

earlier that morning to say that she had had a family emergency

and was unable to appear. The prosecutor requested that the

trial again be rescheduled, asserting, "I understand today is

the trial date and this has been on for trial several times, but

there was a family emergency on her end, and I did expect her to

come today."

Defense counsel objected to any further continuances. She

said, "[T]his is at least three separate occasions when the

[t]rooper has not been available, and I'd ask you to dismiss the

matter." The judge inquired of the prosecutor whether she had 5

the same memory of the trooper having been unavailable on

previous dates, and the prosecutor affirmed that she did.

The judge then asked the prosecutor whether, on the prior

dates when the trooper had not appeared, she had received

advance notice of the trooper's unavailability. The prosecutor

responded, "On [August 4, 2020], . . . I knew why [the trooper]

wasn't here, but I don't believe she gave me [any more] advanced

notice than like the morning of." The judge said, "I appreciate

that she has a family emergency today, and I'm happy that she

reached out to you[.] [T]he Commonwealth, however, seems to

[have] an issue of her not appearing notwithstanding today's

emergency. Does the Commonwealth wish to say anything else?"

The prosecutor answered, "[T]his is a very provable case with

the [t]rooper. I do understand that the [t]rooper has not been

here for multiple dates, and I do understand that, but . . . we

possibly would take out additional charges if this case was

dismissed."

The judge asked defense counsel whether she still intended

to move for dismissal. Counsel responded, "I am, Judge. And

I'd ask that the Commonwealth be ordered to go through proper

channels of a [m]otion to [v]acate the [d]ismissal, giving

notice to myself and my client if they try to reopen it."

The judge then allowed the motion to dismiss for want of

prosecution and noted that the dismissal was over the 6

Commonwealth's objection. After dismissing the case, the judge

added, "Should the Commonwealth wish to pursue this case, the

Commonwealth is ordered to file a [m]otion to [v]acate the

[d]ismissal, [and to] notify [the defendant and his attorney] so

that we can set this up for a hearing where everybody can be

heard." The judge also told the defendant, "[S]tay in contact

with [your attorney]. I anticipate there will likely be a

motion for you to come back into court, sir; okay?" A notation

of dismissal without prejudice was entered on the docket. The

Commonwealth then filed a petition for extraordinary relief

pursuant to G. L. c. 211, § 3, in the county court, and a single

justice reserved and reported the case, without decision, to the

full court.

2. Discussion. The Commonwealth argues that the judge

lacked the authority to require it to file a motion to vacate

the dismissal before it could seek a new criminal complaint

against the defendant. Accordingly, the Commonwealth asserts,

the judge's ruling effectively was an improper dismissal with

prejudice. The defendant maintains that, in allowing the

prosecutor to file a motion to vacate the dismissal, the judge

provided the Commonwealth with an adequate opportunity to argue,

at a hearing, that the prosecutor should be allowed to refile

the case. The defendant also argues that the order was 7

permissible, given the court's inherent authority to manage its

docket.

Article 30 prohibits one branch of the government from

interfering with the functions of another. See K.J. v.

Superintendent of Bridgewater State Hosp., 488 Mass. 362, 368

(2021). Among the functions exclusively within the domain of

the executive branch is "the decision to proceed with [a]

prosecution." Commonwealth v. Newton N., 478 Mass. 747, 755

(2018). Judicial review of such a decision "would constitute an

intolerable interference by the judiciary in the executive

department of the government and would be in violation of art.

30." Id. at 755-756. For this reason, "[i]n the absence of a

legal basis to do so, it is well established that a judge may

not dismiss a valid complaint over the Commonwealth's

objection." Commonwealth v. Morgan, 476 Mass. 768, 780 (2017).

"[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" (quotations,

citation, and alterations omitted). Commonwealth v. Cheney, 440

Mass. 568, 574 (2003).

A prosecutor nonetheless does not have the authority to

delay prosecution indefinitely once charges have been filed.

See Commonwealth v. Super, 431 Mass. 492, 499 (2000); Mass. R. 8

Crim. P. 36 (b), as amended, 422 Mass. 1503 (1996) (requiring

that defendant be brought to trial within specified period of

time). "[T]he prosecutor's broad discretion over whether a case

is prosecuted must be considered in conjunction with the

judiciary's wide discretion as to when a case goes to trial."

Commonwealth v. Taylor, 428 Mass. 623, 629 (1999). If the

Commonwealth fails to prosecute a case, a judge has "the

inherent authority to dismiss [the] indictment for failure to

prosecute." Commonwealth v. Graham, 480 Mass. 516, 536 (2018).

This authority extends to situations where the Commonwealth is

not ready for trial because one of its witnesses is absent. Id.

When a judge dismisses a case for failure to prosecute, the

dismissal ordinarily is without prejudice, thus allowing the

prosecutor to refile the charges and to proceed with the

prosecution. See Graham, 480 Mass. at 537. Because a dismissal

without prejudice does not preempt further prosecution of a

defendant, it is "upheld in the absence of an abuse of

discretion." Id. at 536, quoting Commonwealth v. Connelly, 418

Mass. 37, 38 (1994).

Alternatively, a judge may dismiss a case with prejudice,

so that the Commonwealth is precluded from refiling the same

charges against the defendant. See Commonwealth v. Mason, 453

Mass. 873, 877 (2009). Because dismissal with prejudice

"precludes a public trial and terminates criminal proceedings" 9

(citation omitted), id., such a dismissal raises concerns as to

whether the court is infringing on the power of the executive

branch, see Cheney, 440 Mass. at 574. For this reason, a

court's inherent authority to dismiss an indictment with

prejudice may be 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" (citations omitted). 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). "To conclude otherwise would be to permit

judges to substitute their judgment as to whom and what crimes

to prosecute, for the judgment of those who are constitutionally

charged with that duty, and who are accountable to the people

for doing so responsibly." Cheney, supra at 575.

Here, in response to the Commonwealth's repeated failures

to prosecute the defendant, the judge dismissed the case without

prejudice. As the Commonwealth concedes, the dismissal was not

an abuse of the judge's discretion. See Graham, 480 Mass.

at 536, quoting Commonwealth v. Lucero, 450 Mass. 1032, 1033 10

(2008) ("where a prosecutor is unprepared to present her case

due to the unexpected absence of a witness, a judge has

discretion to dismiss the case without prejudice"). The judge,

however, did not limit her order to a simple dismissal. Rather,

she added a condition that, in order to pursue new charges

against the defendant for those offenses, the Commonwealth was

required to file a motion to vacate the dismissal. This

requirement constituted a hurdle for the Commonwealth to

overcome in order to reprosecute the case. As a result, the

Commonwealth could have continued to prosecute the defendant

only with the court's approval.

The judge's ruling thus interfered with the prosecutor's

exclusive "discretion in deciding whether to prosecute a

particular defendant." Cheney, 440 Mass. at 574. This

interference took place prior to a "verdict, finding, or plea,"

id. at 568, and was not based on a finding that the

Commonwealth's delays constituted egregious misconduct, or that

they prejudiced the defendant's ability to receive a fair trial,

see Mason, 453 Mass. at 877. While the ruling was not a

dismissal with prejudice, it nonetheless improperly constrained

"a power reserved for the executive branch" (quotations and

citations omitted). Commonwealth v. Powell, 453 Mass. 320, 323

(2009). The ruling therefore was in violation of art. 30. 11

The defendant argues that the Commonwealth retained the

right to pursue the prosecution because the judge's action did

not permanently preempt the Commonwealth from prosecuting the

case. Rather, the prosecutor could have moved to vacate the

dismissal; this, according to the trial judge, would have

resulted in a "hearing where everybody [could] be heard." The

defendant contends that at such a hearing, the prosecutor could

have argued that a dismissal with prejudice was not warranted;

if the judge had been persuaded, she then could have placed the

case back on the trial list.

This argument is unconvincing. Nothing in the record

suggests that, had the prosecutor moved to vacate the dismissal,

the hearing on the motion to vacate would have addressed whether

a dismissal with prejudice was warranted. Rather, the judge

could have upheld the dismissal without prejudice in the absence

of a finding of egregious misconduct or prejudice to the

defendant. See Commonwealth v. Gardner, 467 Mass. 363, 368

(2014) (dismissal without prejudice is upheld absent abuse of

discretion). A hearing on a motion to vacate the dismissal thus

would have been insufficient to protect the "exclusive power of

the executive branch to prosecute criminal cases." Commonwealth

v. Gonsalves, 432 Mass. 613, 620 (2000).

The defendant also argues that the judge did not abuse her

discretion because the ruling was issued pursuant to her 12

inherent authority to manage the flow of the court's docket. In

the defendant's view, the court has the authority to take the

measures necessary to maintain the efficiency of its docket in

the face of the prosecutor's delays.

The courts' inherent powers are those that, while not

statutorily provided, see Commonwealth v. Teixeira, 475 Mass.

482, 490 (2016), are "essential to the performance of their

functions, to the maintenance of their authority, and to their

capacity to determine the rights of parties according to law,"

Commonwealth v. Charles, 466 Mass. 63, 72-73 (2013), quoting

Blankenburg v. Commonwealth, 260 Mass. 369, 373 (1927). "The

boundaries of inherent judicial authority have been established

on a case-by-case basis as challenges to the exercise of a

particular power have arisen." Charles, supra at 73. Among the

courts' inherent powers, we have recognized the authority to

dismiss an indictment for failure to prosecute, Graham, 480

Mass. at 536; to order prehearing discovery, Teixeira, supra

at 491; to stay execution of a defendant's sentence in

exceptional circumstances, Charles, supra at 79; and to make

scheduling decisions with regard to trial, Super, 431 Mass.

at 499; we have also recognized the authority "to control and

supervise personnel within the judicial system" (citation

omitted), Carrasquillo v. Hampden County Dist. Courts, 484 Mass.

367, 384 (2020). 13

"[T]he very conception of inherent power carries with it

the implication that its use is for occasions not provided for

by established methods. Only when established methods

fail, . . . or when an emergency arises which the established

methods cannot or do not instantly meet, then and not till then

does occasion arise for the exercise of the inherent power"

(citation and alterations omitted). Brach v. Chief Justice of

the Dist. Court Dep't, 386 Mass. 528, 536 (1982).

Here, the court had an interest in discouraging further

delays by the Commonwealth in order to "keep the judicial system

in efficient operation," State Realty Co. of Boston v. MacNeil

Bros. Co., 358 Mass. 374, 379 (1970), and to protect the

"defendant's ability to receive a fair trial," Connelly, 418

Mass. at 39. Established methods, however, would have sufficed

to serve this interest. In particular, prior to issuing her

ruling, the judge could have made a finding on the record

concerning the existence of either egregious misconduct or

prejudice to the defendant, which would have enabled appellate

review of the "propriety of such a finding." See Commonwealth

v. Lam Hue To, 391 Mass. 301, 314 (1984). If more information

were needed, the judge could have scheduled a hearing to

determine whether a dismissal with prejudice was warranted.

This would have provided the Commonwealth an opportunity to

prepare an argument that its conduct did not surpass the "high 14

threshold that must be crossed before dismissal [with prejudice]

is appropriate." Commonwealth v. Viverito, 422 Mass. 228, 230

(1996). We therefore conclude that the judge's ruling was not

essential for the "judicial department to function" (citation

omitted). See Charles, 466 Mass. at 73. Rather, the ruling

constituted an unwarranted intrusion upon the powers granted

exclusively to the executive branch under art. 30.

3. Conclusion. So much of the order granting the

defendant's motion to dismiss as required the Commonwealth to

file a motion to vacate the dismissal is vacated.

So ordered.